Strengthening Article 20

By MERLE H. WEINER*

THE HAGUE CONVENTION on the Civil Aspects of International Child Abduction ("the Hague Convention") tis a private international treaty in force in approximately seventy-five countries. 2 The Hague Convention addresses international child abduction and generally requires that an abducted child be promptly returned to his or her habitual residence, unless the abductor can invoke one of several defenses set forth in the Hague Convention.' This Article focuses on

* Associate Professor of Law, University of Oregon School of Law. An earlier version of this article was published by Bruylant as part of the conference proceedings for Les Enlivements d'Enfants , Travers les Frontiers, held at.the Universitejean Moulin (Lyon 3) in November 2003. 1 want to thank Professor Hugues Fuichiron and his colleagues at the Faculte de Droit and the Centre de Droit de ]a Farille for hosting the stimulating conference. I also appreciate Professor Fulchiron's permission to republish my conference paper in the United States, albeit with modifications. I appreciate the useful comments that I received on this paper from colleagues at the University of Oregon, especially Leslie Harris and Robert Tsai, and from Carol Bruch. The following research assistants were very helpful on this project: Tim Fleming, Daniel Foster, Frank Gihnore,Jay Livingston, and Joe Rohner. I especially want to single out the efforts of two research assistants, Jane Trost and Melissa Wright, both of whom worked with me for several years now and both of whom graduated this last spring. Their efforts have enhanced many of ny research projects, including this one, and I am very indebted to them for their outstanding work, commitment, and friendship. I also want to acknowledge the excellent secretarial support given by Karyn Smith. 1. Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11,670, 1343 U.N.T.S. 89. 2. See Lkct.uE CONFIREN( ON PRIV.ATE INT'L L\w, Futmm. STATS REPORT CONVLNTION No. 28, at http://,ww.hcch.net/e/status/stat28e.html (last. accessed June 14, 2004). 3. The Hague Convention defenses are found in several articles: article 12 ("'[ihe judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment."); article 13(a) ("[T]he person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention."); article 13(b) ("[T] here is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation."); article 13 (unnumbered portion) ("[T]he child objects to being retuned and has attained an age and degree of maturity at which it is appropriate to take account of its views."); and article 20 ("The return of the child under the provisions of [ajrticle 12 may be refused if this would not be permitted by the fundamental principles of the requested

701 UNIVERSITY OF SAN FRANCISCO LTW REVIEW [Vol. 38 article 20 of the Hague Convention, which provides that a court may refuse to return a child if return "would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms." The article 20 defense has minimal doctrinal significance at present; however, I argue that it can and should be strengthened to make the Hague Convention oper- ate more justly for those domestic violence victims who flee transnationally with their children as part of their effort to escape from domestic violence. I have previously written that domestic violence victims are sometimes treated unjustly when they arc respondents in cases brought pursuant to the Hague Convention. 4 At the time the Hague Conven- tion was being drafted, approximately twenty-five years ago, many imagined that the prototypical abductor would be a father who lost, or would lose, a custody contest to a mother.5 It made perfect sense, therefore, for the Hague Convention to contain expedited procedures and a remedy that returns a child to the child's habitual residence (and, it was assumed, typically to the child's primary caretaker). As it turns out, however, approximately seventy percent of the "abductors" subjected to the Hague Convention's remedy are women, 6 most of whom are the child's primary caretaker 7 and many of whom claim to be fleeing from domestic violence.8 Notwithstanding these women's predicaments, some judges grant the petitions of these women's bat-

State relating to the protection of human rights arid indamental freedoms."). Hague Convention on the Civil Aspects of International Child Abduction, supra note 1, at arts. 12-13, 20. 4. Merle 11. Weiner, International Child Abduction and the Escapef]om Domestic Violence, 69 FoR-in-iV L. Ruv. 593 (2000) [hereinafter Weiner, International Child Abduction]. 5. Id. at 601-10. 6. Nigel Lowe, Sarah Armstrong, & Anest Mathias, A StatisticalAnalysis o] Applications lade in 1999 Under the I-agutie Convention of 25 October 1980 on the Civil p.,qects of International Child Abduction, Special Comm'n Prelim. Doc. No. 3, March 2001, at 8, available at http:// www.hcch.n(t/doc/abdpd3e.doc (last accessed Aug. 24, 2004) [hereinafter Lowe, Statisti- cal Anatvsi,5]; see also REUNITE, INT'l. CHIi.D ABDUCTION C .NTRF, TH ()TCOME S FOR CAM.- DIEN R'TURNS 0 FOL.LOWING AN AtmU(CTON 17 (Sept. 2003) (sixty-three percent of sample involved abduction by mother). 7. See REUNITE, supra note 6, at 7 (commenting on pilot project involving twenty- three questionnaires which confirmed "mothers are more often the abductors of their children than fathers, and that, in most cases, it is the primary caregiver who will abduct their child"). 8. Women claimed to be victims of domestic violence in seven out of nine cases that reached the United States Courts of Appeal between July 2000 and January 2001. See Merle 1I. Weiner, Navigatingthe Road Between Unilbrmity and Progress: The Need for PsPitosiveAna,sis of the Hague Convention on the Civil Aspects of nternationalChild Abdutitian, 33 Cof.t M. Huiv. RTS. L. Rr.v. 275, 277 (2002) [hereinafter Weiner, Navigating the Road Between Unifonnity and Progress]. Domestic violence was the reason lor the abduction that emerged in live of the Surnmer 2004] ,WFICLE 20 terers and return their children to the place from which the women have just fled.!' Domestic violence victims receive no special treatment when they are respondents in these proceedings, and most domestic violence victims cannot make successful argunents under the Hague ° Convention's limited defenses. " Fortunately, the topic of domestic violence is on the agenda for the 2005 Special Session to Review Opera- tion of the Hague Convention. These facts provide the background against which I suggest article 20 should be strengthened. Strengthening article 20 is important for at least three reasons. First, attempts to breathe life back into article 20 and the recognition of domestic violence as a human rights issue may motivate delegates at the next Special Session to improve the Hague Convention's operation for cases that involve domestic violence. Focusing attention on article 20, with its reference to human rights, may help set an appropriate tone for that meeting. After all, the countries that will participate at the Special Session are parties to international instruments that recognize domestic violence as a human rights issue and impose affirmative obligations on countries to address the issue.I Their delegates should act to protect these women and children by, among other things, reinforcing the idea that article 20 is a viable defense for some domestic violence victims. Second, strengthening article 20 should help some domestic violence victims who currently lack other viable defenses. As will be argued below, it violates fundamental principles of human rights to send a domestic violence victim's child back to a location where the mother is unsafe. This inflicts a horrific choice on the domestic violence victim: your safety or your child. She can return with her child to the child's habitual residence, but her safety and life will be at risk. Alternatively, she can choose her own safety and not return to her child's habitual residence. However, then she will be temporarily de- eleven interviews with abducting mothers in the REUNITE study. See REUNITE, supra note 6,at 20-21. 9. See, e.g., Whallon v. Lynn, 230 F.3d 450 (6th Cir. 2000); Tabacchi v. Harrison, No. 99 C 4130, 2000 WI, 190576 (N.D. Ill. Feb. 10, 2000). 10. While a sympathetic court occasionally extends or contorts the Hague Convention to accommodate some domestic violence victims, judges' manipulation of the Hague Con- vention to help domestic violence victims causes its own problems, including making inad- vertent loopholes that potentially threaten the Hague Convention itself. Reform is needed because donestic Niolence victims are treated grudgingly and inconsistently and because consistency of interpretation is essential to this treaty's continued success. See generally Wei- net, Navigating the Road Between Uniformity and Progpes, supra note 8. 11. See discussion infra Part II.B.I. UNIVERSI'IY OF SAN FRANCISCO LAW REVIEW LVol. 38 prived of her child pending the custody contest, she will be leaving her child without her protection, and she will be increasing the risk of losing any subsequent custody contest because she will be absent from that proceeding.12 A court should not return a domestic violence victim's child if the mother would be faced with such an inhumane choice. Third, breathing life into article 20 will hopefully stop a practice that isjust starting to emerge: some judges that adjudicate Hague petitions are disregarding abductors' pending refugee applications. In a few recent cases, domestic violence victims have used the same facts to claim asylum and also used the same facts to defend against their batterers' Hagne petitions for their children's return. Although these women often allege that living in the child's habitual residence poses a grave threat to their own safety (based upon the foreign state's inability or unwillingness to protect them from domestic violence),' 3 courts adjudicating their Hague Convention petitions have returned children before the asylum claims were resolved, citing the need to act expeditiously. Article 20-and its focus on human rights-suggests that this outcome is wrong. This Article begins by detailing the legal basis for strengthening article 20. It suggests that the defense's limited use is probably attribu- table to three factors: (1) a statement made by Elisa P6rez-Vera, the Reporter for the Special Commission that drafted the Convention; (2) a statement made by the United States State Department in its interpretation of the treaty; and (3) statements made by courts applying the treaty. The Article contends that these three factors should have

12. Most doinestic violence victims faced with this horrific choice do return with their child to the child's habitual residence, become victimized again by their batterer, and become trapped despite their own efforts to leave. REUNITE documented that mothers who abduct, but not fathers who abduct, routinely return with their children to the children's habitual residence despite threats to their own safety. Although batterers gave undertakings to courts promising not to abuse the mother upon her return, these batterers always broke the undertakings, proving true women's predictions of violence. REUNITE, slpmi note 6, at 31, 38. Although courts typically awarded women in the study custody of their children upon return, the women's requests to relocate with tme children were frequently denied or decided only after a prolonged period of time. Id. at 35, 36-37, 44. 13. To be eligible for refugee status, the alien (1) must be unable or unwilling to return to his or her country; (2) because of persecution or a well-founded fear of persecution; and (3) the persecution must be on account of race, religion, nationality, ncmber- ship in a particular social group, or political opinion. See generally Handbook on Procedures and Crtteia.fbr Determining Refugee Stat.,o Under the 1951 Convention and the 1967 Protocol Relating to the Status of Rej/igees §§ 2-6, U.N. 11CR, U.N. Doc. HlCR/IP/4/Eng/REV.1 (re- vssed 1992). A country can be responsible for persecution committed by a non-governmental entity if the persecutor was someone the government was unable or unwilling to control, See id. 65. Summer 2004] ,WFIICLE 20 minimal importance for future courts in light of the Hague Conven- tion's diplomatic history and the substantive merit of these factors. The Article then explores how a strong article 20 would benefit domestic violence victims and examines in more detail tile three bene- fits set forth above: (1) article 20's potential role in stimulating a robust and productive exchange at the next Special Session; (2) the viability of an article 20 defense for domestic violence victims; and (3) the importance of article 20 when an asylum claim is pending. Part of this analysis entails exanining how the application of the Hague Con- vention currently violates international human rights. The Article concludes with an aspirational statement that may help guide delegates in their efforts to assist victims of domestic violence and their children.

I. Article 20's Demise Article 20 is rarely used as a basis for refusing the return of a child. Professor Nigel Lowe studied Hague applications filed in 1999 and identified courts' reasons for refusing to return children in ninety-nine cases. In none of the cases did a court base its decision, even in part, on article 20.14 As Professors Beaumont and McEleavy concluded in 1999, article 20 has "nearly faded without a trace."15 While establishing the cause of article 20's impotence is somewhat speculative, three factors have likely contributed to its underu- tilization. First, commentary by Professor Elisa Prez-Vera, a professor of international law at the University Autonome de Madrid and the Reporter during the drafting of the Hague Convention, appears to have stymied courts' willingness and ability to apply the defense. It was not Professor Perez-Vera's statement that the defense should be narrowly construed that was the defense's death knell; after all, the Re- porter made similar comments about other defenses and all of these have maintained some vitality. " Rather, Professor POrez-Vera made an

14. Lowe, ,StatisticalAnalysis, supra note 6, at 16-17. 15. PAUL R. BI. xumoMNr & P1TER E. McEt.EX, Tn " H'UL CO.-'AN'rtoN ON INTLRNA- TIONA!L CnIL.t AISIACTION 172 (1999). 16. See ELiSA PIREZ-VERA, EXPLAN.ATORY REPORT .34 (1981), repinted in t-IAGVE CON- FERENCE ON PRIVATE IN'i'. LAW, III AcU'S ir D)cuOiEnNrs DE LAW QU.-TORZIPM SESSION OcTroBER 6-25, 1980, at 426 [hereinafter PfRl.z-V.RA, EXmlANATORY REPORT]. This source states: [lit would seem necessary to underline the fact that the three types of exceptions [in articles 13 and 20] to the rule concerning the return of the child must be applied on so far as they go and no further. This implies above all that they are to be interpreted in a restrictive fashion if the Convention is not to become a dead letter. UNIVERSrI'Y OF SAN FRANCISCO LAW REVIEW [Vol. 38 enigmatic comment specifically about article 20 that appears to have hampered its application. In the Explanatory Report to the Conven- tion, she wrote: [T]o be able to refuse to return a child on the basis of. . . article [20], it will be necessary to show that the fundamental principles of the requested State concerning the subject matter of the Conven- tion do not permit it; it will not be sufficient to show merely that its return would be incompatible, even manifestly incompatible, with these principles .... 17 These perplexing words have been repeated by courts in support of the proposition that article 20 is to be interpreted narrowly.' 8 Second, article 20 received a separate blow from a fourteen-word passage contained in the United States State Department legal memorandum to the Senate Foreign Relations Committee. The State De- partment stated that the defense should only apply when the return of the child would "utterly shock the conscience of the court or offend all notions of due process."t The State Department's language has 2 1 been cited by courts in the United States 20 and abroad. Third, courts have damaged the vitality of article 20. Courts have cited the rare success of an article 20 defense as a justification for not applying the defense.22 In addition, some courts have suggested that article 20 is simply "redundant" with article 13(b). Article 13(b) permits a defense if return would place the child in an "intolerable situa-

17. Id. 118. 18. 'See, e.g., Dep't of Fainilies Youth & Cinty. Care v. Benrett (2000) 26 Faro. L. R. 71, 57 (Faro. Ct. Austi.); McCall v. State Cent. Auth. (1994) 18 Farn. L. R. 307 (Far. Ct. Austl.); March v. Levine, 136 F. Supp. 831, 855 (M.D. Tenn. 2000), a/fd, 249 F.3d 462 (6th Cir. 2001); Janakakis-Kostun v. Janakakis, 6 S.W.3d 843, 851 (Ky. Ct. App. 1999); Caro v. Sher, 687 A.2d 354, 361 (NJ. Super. Ct. Ch. Div. 1996). Cf Hague International Child Abduction Convention: Text arid Legal Analysis, Public Notice 957, 51 Fed. Reg. 10,494, 10,510 (Dep't Stare 1986) (legal memorandum explaining the Convention to the Senate Committee on Foreign Relations). 19. Hague International Child Abduction Convention, Public Notice 957, 51 Fed. Reg. at 10,510. 20. See Aldinger v. Segler, 363 F. Supp. 2d 284, 290 (l).P.R. 2003); Hazbut Escaf v. Rodriquez, 200 F. Supp. 2d 603, 614 (E.D. Va. 2002). But f Patricia M. -off, Adrienne E. Volenik & Linda K Girdner,Jurisdictitonin Child Cuvtody and Abduction (Gaste:A Judges Guide to the U,CCJA, PKPA, and the Hague Child Abduction Convention, 2 Juv. & E-vt. Cr. J. § 10-8 (1997) (citing State Department language). 21. See Dep't of Famiies Youth Cnty. Care (2000) 26 Farn. L. R. at 56; Emmett & Perry (1995) 20 Fan. L. R. 380 (Fai. Ct. Austrl.), available at http://www.hech.net/incadat/ fullcase/0280.htm (last accessed Aug. 24, 2004); McCall (1994) 18 Fain. L. R. at 307. 22. See, e.g., IHazbun Escaf 200 F. Supp. 2d at 614 ("[Plarties have riot cited, nor has the Court found, any authority applying the article 20 exception to return based on 'findamental principles of ite [United States] relating to the protection of human rights and fundamental freedoms.'") (internal citation omitted). Summer 2004] ,WF,IC LE 20

23, tiofl." Courts reason that it would be "intolerable" to return a child if doing so would violate fundamental human rights principles.2 4 The comments of the Reporter, the State Department, and various courts reflect, or perhaps contributed to, the skepticism about article 20 found in several Contracting States. Some countries minimized the viability of the article 20 defense through provisions of their domestic implementing legislation. For example, the United States requires that the defense be established by clear and convincing evidence, 25 unlike some of the other defenses.26 A few Contracting States, such as the United Kingdom and Finland, did not even enact the article 20 defense into domestic law,2 7 a questionable result given 28 that the Hague Convention permits no such reservation.

23, For the text of article 13(h), see supra note 3. 24. See Danaipour v. McLarey, 183 F. Supp. 2d 311, 326 (1). Mass. 2002), rev'd on other grounds, 286 F.3d 1 (lst Cir. 2002); Hazlmn Escaf 200 F. Supp. 2d at 614 n.37; seealollague Conference on Private Int'l Law, Report of the Second Special Commission to Review the Operation of the Hague Convention on the Civil Aspects of International Child Abduction, Jan. 18-21, 1993, 33 I.L.M. 225, 243 (1994) [hereinafter Report of the Second Special Comimission] ("[1]t was suggested that Article 20 is already covered by the earlier grounds for refusing to return a child, listed under Article 13."). 25. 42 U.S.C. § 11603(e) (2) (A) (1995). The article 13(b) defense must also be estab- hslied by clear and convincing evidence. See id. 26. 42 U.S.C. § 11603(e)(2)(B) (1995) (referring to the defenses other thans article 13(b) and article 20); see also supra note 3 (same). 27. See Hague Conference on Private Int'l Law, O jerall Conclusions of the Special Commis- sion of October 1989 on the Operation of the Hague Convention of 25 October 1980 on the Civil Aspects o/InternationalChild Abduxction, Oct. 26, 1989, 29 I.L.M. 219, 230 (1990). The United Kingdom's reasons for not enacting article 20 into domestic law included the belief that under U.K. law article 20 was redundant with the other defenses and that its meaning and scope were uncertain. See Nnlv.'i, LowE, MARK Evwur, & MICHAL. Niunoj., INTERNA- TIONAL MOVEMENT OF C-ILDREN 370 (2004) (quoting Lord Hailsham, LC) [hereinafter LoW[,, IIERAH. & NWcHOLLS, IN rI,NArIONAl. MOx'i'MN'T OF CHn.nuFVN]; see also Re K (Ab- duction: Psychological Harm) [1995] 2 F.L.R. 550 (Eng. C.A.) (holding that article 20, which had not been incorporated into English law, could riot be relied upon except to interpret other provisions which had been incorporated and that the article 13(b) defense was not established even with regard to arti(:le 20). 28. See Hague Convention on the Ciil Akspects of International Child Abduction, supira note 1, at art. 42. Although England and Finland did not incorporate article 20 into domestic law, the domestic violence victim's dileriina may still provide a defense to the application of the remedy of return in these countries. Both of these countries are parties to the European Convention for the Protection of Human Rights and Fundamental Free- doms, Nov. 4, 1950, 213 U.N.T.S. 211 [hereinafter "ECHR"]. Litigants in U.K. courts can now rely directly on the ECHR. See Human Rights Act of 1998, ch. 42 §§ 3, 6 (U.K.). More- over, courts in Finland can apply it as domestic law. See Core Document Forming Part of the Reports of States Parties: Finland, U.N. HCI-IR, 32, 43, 45, 47, U.N. Doc. HRI/ CORE/Add.59/Rev.2 (1998). On the international level, both countries might be in breach of their obligations under the ECHR if they failed to avert a hunian rights violation in a Hague Convention case, despite the fact that article 20 was not enacted into domestic law. A country cannot use compliance with internal law as a defense to a claim of breach UNIVERSHIY OF SAN FRANCISCO LAW REVIEW [Vol. 38

Consequently, although article 20 was enacted with a "comforting majority" in its favor,29 and although the Reporter acknowledged that "the exact scope" of article 20 "is difficult to define,"30 suggesting a future of robust litigation, article 20 has become doctrinally insignifi- cant. Article 20's demise is unfortunate because itwas an important provision during the drafting of the Hague Convention.

II. Strengthening Article 20 A. The Origin of Article 20 The diplomatic history of article 20 suggests that the provision should be read liberally. First, the current wording of article 20 was not the preferred choice of a majority of delegates, many of whom wanted a wide public policy defense and a majority of whom had already voted in favor of more expansive language than that which is found in the current article 20. Although a broad public policy exception never gained sufficient support for passage,"' a generously worded, but somewhat narrower, proposal initiated by the Danish and the Dutch delegations was initially adopted as an article of the Con- vention.3 2 It permitted Contracting States to enter a reservation so under international law. See, e.g., Repot on the Wr,? offts Fifly-Third Session, U.N. GAOR 55th Sess., Supp. No. 10 74-80 U.N. Doc. A/56/10 (2001) (and cases cited therein). For a discussion of the European Convention on Human Rights in the context of domestic violence, see generally Ela Grdinic, Application of the Elnemnts of Th"ture and Other Forms of Ill- Treatment, as Defined by the European Court and Commission o/ Human Rights, to the Incident3 of Dome,5tic Violence, 23 I-IASTIN(,S INT'i. & ComP. L. Rrv. 217 (2000) and D. MARIAXNNE BUvIR & MERI, H. WEINER, FAMILY LAW IN THE WORLD COMMUNJIrv: CASES, MATERIALS, AN) PROB.EAUS IN COMPARATIV. ANY) INTERNATIONAL. FAMt.5 LAW 534-47 (2003) [hereinafter BIAIR & LNER, FAMILY LAv]. 29. See PlZ-VERA, Exv.SANATIOvY RFi.OIrY, supra note 16, at 434. The vote was fourteen in favor, six against, and four abstentions. See Proces-verbal No. 13, reprinted in t1A;t CON- F:REN(E ON PRIVATE INT'lI LAW, III ACTS ET DOCUMENTS DE. LAWS QUATORZIUME SESSION OcTom. 6-25, 1980, 339 (1980). 30. PRtz-VEtRIA, EXPiANATORY REPORT, supra note 16, at 426; see alSO.JAMES G. McLEon, Cn.n CusToDw LAW AND PRA TCm.3-17, 3-18 (Release 4, Looseleaf 1999) (1992) ("[T]he scope of this exception is unclear and its vagueness may have been intentional on the part of its drafters."). 31. See Procts-verbal No. 9, 15 Oct. 1980, reprinted in HIAGUt CONFERENCE ON PRIVATE INT'L LAW, 111 Ac-fs wT DOC:Usss'.TS D: LAW QoArORPzlM. SESSo'N 6-25, 1980, 306-07 (1980) (showing vote on Working Document No. 36, proposed by Italy, as fifteen against, eight in favor, and one abstention); id.at 307 (showing vote on the oral proposal of Czech- oslovakia, that countries be allowed to reserve the right to adopt a public policy defense, as twelve against, nine in favor, and three abstentions). 32. Working Documents Nos. 31 & 32, Oct. 11, 1980, rpinted in I-IA6.s CONFERENCE ON PRVATE IN". IAW, IIIAcTrEs s-r DOcuMENT'S l)L LAW QuAroRzx.ML. SESSbON OCTOBER 6-25, 1980, 281 (1980) (proposals of the Denmark anti Netherlands delegations, respec- tively). These twso proposals were joined together arid rephrased for purposes of the vote. Summer 2004] ,I(TICLE 20 that an adjudicator could reject a petition for the child's return when such return would be "manifestly incompatible with the fundamental principles of law relating to the family and children in the requested State. 13 3 The delegates opposed to this language later proposed Work- ing Document 62 (the current article 20) as a compromiseY That a majority of countries favored article 20's predecessor-a broader provision-but agreed to its tightening in order to placate other countries suggests that article 20 should be read liberally, not narrowly. In fact, some of the countries that supported the broad public policy exception believed that the current version of article 20 was not a substantial change from the early proposals. For example, Professor Barile of Italy noted, " [E]ven in the absence of a public policy clause a court might (and indeed must) apply its own rules of public policy, since they express the fundamental principles of its juridicial order."35 Second, article 20 was adopted to remedy the perceived narrowness of article 13(b). A.E. Anton, then-chairman of the Commission of the Hague Conference that drafted the Hague Convention, explains that the Danish and Dutch proposals were a reaction to the narrow- ncss of article 13(b). Since article 13(b) only focused on the child, "[a] ttempts . ..were made to widen this exception .... "- An additional defense was needed because article 13(b) "would not by itself necessarily exclude a duty to return a child 'wrongfully removed' by a political refugee in breach of rights of custody imputed to a person under the law of the State from which he has sought refuge." -7 While

Working Documents Nos. 31 and 32, in so far as they proposed allowing Contracting States to "reserve the right not to return the child when such return would be manifestly incoin- patible with the findamental principles of the law relating to the family and children in the State addressed," was approved by a vote of eleven in favor (Czechoslovakia, Denmark, Finland, Ireland, Israel, Italy, Netherlands, Norway, Sweden, United Kingdom, and Vene- zuela), ten against (Austria, Belgium, Canada, France, Federal Republic of Germany, Greece, Luxemburg, Portugail, Spain, Switzerland), with three abstentions (Australia, Ja- pan, and the United States). See Proc's-verbal No. 9, 15 Oct. 1980, reprinted in I-Ix JE CON- FERENCE ON PRWXTE INT'L LAW, III ACTES T DOCUMENTS DE Lw QUATORZtkME SESSION Ocro.R 6-25, 1980, 307 (1980); see also PW.Rz-VEA, EiXI'IANArORY REi'ORT, supra note 16, at 433-34. 33. See Working Documents Nos. 31 & 32, supra note 32. 34. Article 20, embodied in Working Dociment 62, was a joint proposal of the delegations from Belgium, France, Federal Republic of Germany, Greece, Ireland, Italy, Luxem- burg, Portugal, Spain, and Switzerland. See Working Document No. 62, reprinted in IIAUE CONERENCE ON PRtvNmt. INT'L tAW, III AumTEs tE-.rI)o(U-vwN[S DI" LAW QUAt[oR./ME SE SSION Ocro.R 6-25, 1980, 332 (1980). 35. ALE. Anton, The Hague Convention oni Internatitonial Child Abduction, 30 INT'l. & COan'. LQ. 537, 550 n.47 (1981). 36. ld. at 551. 37. Id. UNIVERSI"'Y OF SAN FRANCISCO LAW REVIEW [Vol. 38 the Secretariat, represented by Mr. Adair Dyer, and some delegates vehemently opposed the proposals of Denmark and the Netherlands, Mr. Anton has stated, "There was clearly a risk, however, that certain States might find it impossible to ratify the Convention unless a wider safety valve was admitted than that approved in Article 13."1311 Hence, a provision was proposed that ultimately resulted in the current version of article 20. Against this backdrop, it is odd to approach article 20 with a conviction that it should be interpreted in the most restrictive fashion. Admittedly, one can find statements in support of a limited scope for article 20 among delegates who voted against the Denmark/Nether- lands proposal. Most notably, for example, the French delegate who introduced Working Document 62 stated that article 20 should be used "qu'exceptionnellement et dans des circonstances rares, '3- that is, "only exceptionally and in rare circumstances." Yet such a statement should not be construed as a definitive expression of the delegates' intent because it reflected the sentiment of the minority. While some delegates probably were concerned that an expansive interpretation of article 20 might undermine the Hague Convention, they had addressed this possibility by including language in article 20 that requires international consensus on those issues that can justify non- return. The delegates did not include in the final text of article 20 any suggestion that it should be used only "exceptionally," even though this language was a clear option since a competing proposal by Australia contained that word. 4t In the end, even if considerable weight is attributed to the French delegate's statement, there was never any suggestion that article 20's use must remain exceptional if the world's understanding of human rights abuses expanded.42

38. Id. (emphasis added). 39. Procs-Verbal No. 13, Oct. 21, 1980, reprinted in HAGUEt, CONFEtRENCE ON PRiVAXV, IrN''L LAW, III Acres ET D)O(UME. ' DE IAWV QUArORZJfAME: SESSION OcroBE'R 6-25, 1980, 337 (1980) (statement of Mr. Chatin (France)). 40. See infra text accompanying note 43. 41. See Working l)ocument No. 64, reprrintedin HAGut CONF:RENGE ON PIUVT INi'L LAW, III ACTS FTi DOCUMENTS Dr: L\.w QuATORZtMti SE SION OcTol .R 6-25, 1980, 332 (1980) (proposal of the Australian delegation). 42. The Reporter made a statement that might be misinterpreted as supporting the proposition that article 20's use must remain exceptional even if the world's understanding of human rights expanded. The Reporter stated that article 20 was not "directed at development which have occurred on the international level." See PEREz-VE',\m, Exi'm ANA- TORY Ripoirr, supna note 16, at 462. The context of that statement makes cleat', however, that she was emphasizing that a judge should consider such developments only to the extent that they were reflected in the internal law of the requested State. Summer 2004] ,WFICLE 20

B. Undoing the Damage The specific causes of damage to article 20 identified above (the Reporter's statement, the United States State Department's interpretation, and the courts' application of the defense) are particularly re- grettable when they are examined individually.

1. The Reporter's Statement Article 20 embodies two changes from its predecessor; one has real significance and the other has minimal, if any, significance. The principal change from the Danish/Dutch proposal was that the phrase "fundamental principles relating to the protection of human rights and fundamental freedoms" was substituted for the phrase "the fundamental principles relating to the family and children in the State addressed." Some delegates feared that without externally imposed parameters regarding what could constitute a significant principle of law, a country might unjustifiably undermine the application of the Hague Convention by citing its own internal law. Professor Pi.rez-Vera specifically mentions that this revision "considerably diminished" the importance of the internal law of the state of refuge by the "reference to the fundamental principles concerning the protection of human rights and fundamental freedoms" since this "relates to an area of law in which there are numerous international agreements. ' 11- The second change reflected in article 20 is of more questionable significance. Delegates eliminated the language "manifestly incompatible" in the earlier Denmark/Netherlands proposal and replaced it with the language "would not be pernitted."4 4 Professor Pfrez-Vera read this change as heightening the "extent of incompatibility [required] between the right claimed and the action envisaged. '4 Yet, in many situations, the two phrases have the same meaning. For example, if a fundamental principle of human rights is embodied in a legal instrument that forbids any governmental action that is "manifestly incompatible" with its principles, such as the United States Constitu- tion, then a court "would not be permitted" to return a child upon a finding of such manifest incompatibility. If the relevant fundamental principle of human rights is found in such a legal instrument, the Reporter's comment unnecessarily confuses matters and should not be cited.

43. d. at 434. 44. Id. 1 33. 45. Id. UNIVERSI'ITY OF SAN FRANCISCO L W REVIEW [Vol. 38

However, in circumstances in which the relevant fundamental principle of human rights is found solely in laws that are of a subordinate or equal status to the Hague Convention and its implementing legislation, a court may not be prohibited by those laws from returning a child, even though return would be "manifestly incompatible" with a fundamental principle of human rights.16 In this situation, the Reporter's commentary appears to have significance, although upon further reflection the commentary is problematic even in this context. Simply put, the distinction drawn by the Reporter between "would not be permitted" and "manifestly incompatible" is based upon words that article 20 does not actually contain. The Reporter must have subconsciously added the following italicized words to article 20's language: "would not be permitted by the laws reflecting the principles related to human rights and fundamental freedoms." Since "principles" never actually prohibit anything (only laws do), adding these words has some intuitive appeal. 47 Yet one can make sense out of article 20 without reading in additional words; one need only interpret the phrase "would not be permitted" in a less technical, more colloquial Tshion. 4 The phrase could be read to mean "return could not occur consistently with those principles." If "would not be permitted" in fact has this meaning, then the Reporter's commentary is in- correct even when the fundamental principle of human rights is embodied in a law that is of a subordinate or equal status to the Hague Convention and its implementing legislation. The benefit of this latter reading is that it elevates fundamental principles of human rights over legal technicalities, and it is consistent with the object and purpose of article 20. For example, in the United States, state constitutions often embody important fundamental principles of human rights. Yet state constitutions do not "prohibit" a fed-

46. See infra text accompanying notes 49-50. The particulars would depend upon the domestic law of the jurisdiction. 47. The Swedish delegate noted this fact and suggested that the language be changed to "manifestly contrary to fundamental principles" of human rights. See Procrs-Verbal No. 13, Oct. 21, 1980, repfinted in HAGt: CoNFER ( ON PREVVtvr INr'L LAW, Ill A(cris F.r Do(.- UMEN-rs O LAW QUAtORm'Mr. SESSION )(-.ronr.R 6-25, 1980, 337-38 (1980) (statement of Ms. Pripp (Sweden)). Her proposal was made informally and seems not to have prompted further discussion or a vote. Delegates may have believed the change was unnecessary if they were reading the term "would not be permitted" in the more informal sense. Id. 48. Cf Continental Oil Co. v. Fed. Power Comrnm'n, 266 F.2d 208, 212 (5th Cir. 1959) (attributing colloquial meaning to the term "production" to effectuate purpose of Natural Gas Act); Royal Ins. Co. of Am. v. Austin, 558 A.2d 1247, 1250 (Md. Ct. Spec. App. 1989) (attributing colloquial meaning to term "hit and run" to effectuate purpose of statute). Summer 2004] ,WFTICLE 20 eral court from returning a child in a Hague proceeding because the federal court is interpreting and applying federal law.49 A federal court could reject outright the relevance of state constitutional rights to an article 20 defense. Similarly, a child's return might not be "prohibited" by human rights legislation, even if return would arguably violate the law, unless the human rights law explicitly said that it was 5 intended to trump the Hague Convention's remedy of return. 1) Even a relevant and ratified human rights treaty might be irrelevant if it was not incorporated into domestic law and the requested State required such incorporation for the treaty to bind its courts. The principles contained therein would not prohibit return. These examples suggest that courts should exercise extreme caution before concluding that the words "would not be permitted" have the meaning implicitly attributed to them by the Reporter. Requiring that the relevant fundamental principle of human rights be grounded in a particular type of legal source leads to outcomes that are inconsistent with article 20's purpose. There is one other possible understanding of the words "would not be permitted" if one is trying to make sense of the Reporter's statement. Regardless of the legal source of the relevant fundamental principle, perhaps the words "would not be permitted" reflect a quali- tativc distinction regarding those fundamental principles of human rights whose violation can excuse return. Does the phrase "would not be permitted" mean that article 20 only refers to those principles of human rights from which no derogation is possible?5' This particular

49. The United States' implementing legislation is a federal statute. See International Child Abduction Remedies Act, Pub. L. No. 100-300, 102 Stat. 437-42 (codified as amended at 42 U.S.C. §§ 11601-11610 (1989)). 50. See, e.g., S (Children) [2002] 2 F.C.R. 642 (Eng. C.A.) (Laws, L.J.) (noting, in obiter, that section 15 of the hImmigration arid Asylum Act 1999, which generally limited removal of an individual who made an asylum claim, subject to certain exceptions, was not intended to create "any exception to the obligations arising under Article 12 of the Hague Convention .. ") c.. Gonzalez v. Gutierrez, No. D040063, at *9, 2003 WL 22236051 (Cal. Ct. App. Sept. 30, 2003) (holding that Congress did not intend the "political asylum laws to broadly preempt the uniform statutory scheme pertaining to custody matters ... [and] there is nothing in the asylum law and the UCCjEA that inherently conflicts so that a UCCJEA action would be necessarily barred" by a party's asylee status). 51, If this were the correct interpretation of article 20, the inquiry would focus on what rights were non-derogable according to the requested State's own law. However, for purposes of considering the likelihood that article 20 refers only to these sorts of rights, it is usefuil to consider what were the commonly accepted non-derogable rights at the time of the Hague Convention's promulgation. Article 4(2) of the International Covenant on Civil and Political Rights, Dec. 19, 1966, 999 U.N.T.S. 171 [hereinafter ICCPR], serves as a use- fil proxy. It lists the following as rights from which no derogation is possible: the right to life (article 6); the right not to be subjected to torture or to cruel, inhutnan, or degrading UNIVERSI'IY OF SAN FRANCISCO LAW REVIEW [Vol. 38 interpretation seems unlikely. The drafters did not explicitly include this limitation in article 20 even though it would have been easy to do. The Reporter never said anything else to suggest that this is the correct interpretation. In addition, the Hague Convention's travaux preparatoiressuggests that article 20 was intended to cover a broader array of rights than only this narrow category. For example, delegates rejected the United States' proposal to limit article 20 to "civil rights," thereby suggesting that human rights and fundamental freedoms included "social, economic, and cultural freedoms."5 2 These types of rights are commonly and legitimately restricted by governments2 - In the end, it is best to recognize that the Reporter's commentary on the change from "manifestly incompatible" to "would not be per- treatment or punishment (article 7); the prohibition on slavery and servitude (article 8); the prohibition on imprisonment for breach of contract (article 11); the prohibition on ex post facto application of the crnimial law (article 15); the right to legal personhood (article 16); and the right to the freedom of thought, conscience, and religion (article 18). In addition, derogation was not permissible for rights that were jus cogens. SeeVienna Conven- tion of the Law of Treaties, May 23, 1969, art. 53, 1155 U.N.T.S. 332; RESTATEMENT (TilnRD) OF FOREIGN RELATIONS L\w § 102 cut. k & rptr's n.6 (1987); see also Comm. of U.S. Citizens Living in Nicaragua v. Reagan, 859 F.2d 929, 940 (D.C. Cir. 1988). Human rights that had the status of jus cogens in 1980 included the prohibition on genocide, slavery, murder, torture, prolonged arbitrary detention, and racial discrinination. See RS-rAT:MI .NT (Truipt) oF FOREIGN RcLATIONS I.,w § 702 & cmt. (1987). 52. See Working Document No. 65, Oct. 21, 1980, reprinted in I-LxcuE CONFIREN(GI ON PRIVATE INT'l. LAW, III ACem-s t:TDocr:TSMEN TI, LAWv QA.&TORZI"M}. SESSION OCTOBER 6-25, 1980, 332 (1980) (proposal of the United States delegation); see also Proc~s-Verbal No. 13, Oct. 21, 1980, reprinted in ltsx&t. CONFERENCE ON PRIVATE INT'l. LAW, III AC(TlS ET 1)OCU- MENTS oE LAW QUATORZIMr SESSION O(CTOBER 6-25, 1980, at 337-38 (1980) (statement of Ms. Selby (United States)); id.(sixteen delegates voted against the proposal and two in favor of it); see also id. at 338 (comments of Mr. Savolainen (Finland)) ("[I] t was clear that tie United Nation's Declaration of the Rights of tie Chiltd was included in the term 'human rights.'"). The U.N. Declaration includes the child's right to social security and the ight to elementary education. See. Declaration of the Rightv of the Child, C.A. Res. 1386, U.N. GAOR, 14th Sess., Supp. No. 16, at 19, U.N. Doc. A/4334 (1959). 53. See International Covenant on Economic, Social and Cultural Rights, Dec. 19, 1966, art. 4, 993 U.N.T.S. 3 (permitting limitations on right.s if they are "determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society"). The Declaration of the Rights of the Child also contains rights from which derogation is possible. See, e.g., Declaration oJ the Rights of the Child, supra note 52, at 19, princs. 2, 4. Even if a meritorious article 20 defense required that the right infringed be one from which no derogation were possible, article 20 might still be useful to the domestic violence victim. Some scholars have argued that gender-based violence, which has "centrality to the subordination of women," should be considered jus cogens. Rhonda Copelon, Recognizing the Egregious in the Eveyday: Domestic Violence as Torture, 25 Coi~t-aM. HuaM. RTs. L. Rm'sv. 291, 365-66 (1994) [hereinafter Copelon, DIomestic Violence as Torture]. To the extent that domestic violence threatens victims' lives and is degrading treatment, italso fais within articles 6 and 8 of the ICCPR. See ICCPR, supra note 51. These principles, of course, would have to be part of the law of the requested State. See in~ra text accompanying note 102. Summer 2004] A1

2. The State Department's Spin The United States State Department's comments about article 20 also grew out of a fear that the provision might be interpreted too broadly.5 7 The United States, in fact, showed a particular animosity toward the article 20 defense during negotiations,58 and this hostility

54. A civil law expert has confirmed that there is no meaningful distinction in civil law between the two phrases that might explain the Reporter's interpretation. See Letter from Cristina Gonzalez Beilfuss, Prof Titular Derecho Internacional Privado, Univestitat de Bar- elona, to Merle H. Weiner, Assistant Professor, University of Oregon School of Law (Oct. 6, 2003) (on file with author). 55. PERf-z-ViPx, EXiANATORY RiEPORT, supra note 16, at 427-28. Typically, however, tie Report is considered to be quite authoritative as it is "recognized by the Conference as the official history and commentary on the Convention . . . " Hague International Child Abduction Convention, 51 Fed. Reg. 10, 494, 10,503 (Dep't State 1986). 56. P'RI'z-VERA Ext'tNATrcRnY Rn'IPORT, supra note 16, at 462; see also in/r text accornpa- nying notes 164-166 (discussing other possible limits on article 20's reach). 57. Hague International Child Abduction Convention, 51 Fed. Reg. at 10,510 (com- nienting that the exception "like the others, was intended to be restrictively interpreted and applied" and was favored to the public policy clause which might "be interpreted so broadly as to undernfine the fabric of the entire Convention"). 58. The U.S. delegation either voted against or abstained from voting on all of the "public policy" predecessors to article 20 and on article 20 itself. As to Working Documents Nos. 31 and 32, the delegate from the United States stated that the "United States delegation did not intend to lend its support to the insertion of a public policy exception." See Procs-verbal No. 9, rpinled in HA(aUF. CoNFERnuCE ON PrIvxN. INT'L L AW, II Acri.s j-r DoC.UiENTS StE LAW QATORiRMFN SFSSION OC(TOBER 6-25, 1980, 306 (1980). The United States voted against Czechoslovakia's oral proposal that article 12 contain such a provision. See id. The United States also voted against. a similar provision that would have allowed a state to reserve tie right not to return on this basis. Id. at 307. The United States then voted against Working Document 31, and abstained from a vote on Working Document 31 UNIVERSITY OF SAN FRANCISCO LAW REVIEW [Vol. 38 continued in the State Department's legal interpretation of the Hague Convention for the United States Senate. In its legal analysis, the State Department claimed that the violation of human rights must "utterly shock the conscience.'5- The origin of this language is impossible to trace, although it likely came from United States constitutional juris- prudence addressing substantive due process.60 The "shock the conscience" test is not grounded in the language of article 20 itself and finds absolutely no support in the Hague Con- vention's diplomatic history. An examination of the context in which the "shock the conscience" test is employed in U.S. constitutional law demonstrates why it should never have been imported into the context of article 20. The "shock the conscience" test is used by courts in the United States to evaluate whether executive action violates substantive due process.' Substantive due process allows courts to hold unconstitutional certain government conduct even though the government's conduct does not violate a right explicitly protected by the Bill of Rights. In the context of the United States Constitution, therefore, it may be appropriate to utilize a narrow test to determine whether the executive has violated a person's substantive due process rights since other explicit provisions of the Constitution also help protect against excessive government action. 62 However, the State Depart- ment suggests that the "shock the conscience" test should be the sole measure of whether an article 20 defense is meritorious. When the "shock the conscience" test becomes the only measure of a human rights violation, it narrows the scope of the defense too dramatically,l -3 read together with 32. Id. The United States abstained from voting on Working Document No. 62. See Proc s-verbal No. 13, reprintedin HAGUE CONFEI'RNCE ON PRIVA'r E IN'r[ I-XW, InI A:r.es r.;'rDoctumF.:yrs m. LAW QUATORZIOVMIV SE.SSION Ouroij.R 6-25, 1980, 339 (1980). The United States also tried to narrow the scope of article 20 after it was proposed in Working Document 62. See Working Document No. 65, nrepinted in HAGUE, CoNv-,RN(, ON PPvsrI. INT'L LAW, III Acrrs a:rD)tMEI LAWL A-wQUTOs IP3,zME SrE&SION OCTOBER 6-25, 1980, 332 (1980); Hague International Child Abduction Convention, 51 Fed. Reg. at 10,510. 59. See Hague International Child Abduction Convention, 51 Fed. Reg. at 10,510. 60. See, e.g., Rochin v. California, 342 U.S. 165, 172 (1952) (finding that stomach pumping by hospital at direction of police in order to gain evidence for conviction was "too close to the rack arid the screw" and therefore violated the Fourteenth Amendment because it "shocks the conscience"). 61. See County of Sacramento v. Lewis, 523 U.S. 833, 846 (1998). 62. But see Matthew D. Umholer, ConfitsingPurs.uits:Sacramento v. Lewis and the Fture of Substantive Due t-ocess in the Executive Setting, 41 SANTA Ct.ARA . REv. 437, 444 (2001). 63. See, e.g., United States v. Knight, 917 F.2d 1, 5 (5th Cir. 1990) (finding that "a due process violation for outrageous conduct will be found only in the rarest and niost outrageous of circumstances"). Summer 2004] ,A1<11CIE 20 and contrary to the intent of the framers, it makes every ruling turn 64 on the highly subjective view of the particular judge.

3. The Courts' Contribution a. Redundant Provisions Contrary to some courts' conclusions, articles 20 and 13(b) are not coterminous even though a successful article 20 defense may sometimes mean that the return of the child would be "intolerable" under article 13(b). The defenses diverge because an article 20 defense, unlike an article 13(b) defense, need not focus on the child but can focus on the parent. Article 13(b) provides no defense to a mother who fiaces violence in the child's habitual residence unless she can link that violence to an intolerable situation for the child.(5 While harm to the mother can obviously harm a child,66 courts adjudicating Hague cases often have refused to make this connection. 67 Even

64. See Lewis, 523 U.S. at 861 (Scalia, J., dissenting) ("[T]oday's opinion resuscitates the ne plus ultra, the Napoleon Brandy, the Mahatina Gandhi, the Cellophane of Subjectiv- ity, th' ol' 'shocks-the-conscience' test.") (emphasis in original); see also Erica L. Reilley, County of Sacramento v. Lewis: A "Comecience-Shocking" Deision Regarding Officer Liability in Iligh-Sipeed Police Pursuit, 32 LOY. L.A. L. Rv. 1357, 1392 (1999); Carrie E. Lente, The Su- p'feme Court Adopts the "Shock the Conscience" Standard in the Context of Vehicular Police Pun nits in County of Sacramento v. Lewis, 32 CREIGHTON L. Riv. 1263, 1309 (1999). 65. The extent to which the adults' interests are irrelevant to an article 13(b) inquiry was vividly displayed in one recent case involving domestic violence. See Mendez Lynch v. Mendez Lynch, 220 F. Supp. 2d 1347, 1351 (M.D. Fla. 2002). 66. Delegates at the 2002 Special Commission recognized the connection. "The meeting emphasised the importance of recognising that the protection of the child may also sometimes require steps to be taken to protect an accompanying parent." 2002 SEX.-JAI COMM'N, REPORT AND CONCUIuONS OF THE SPECI. COMMISSION CONCEIfRNING THE HAGUE C)NVVNION OF 25 O(.roi as 1980 oN 'iH, Civil. A'',(.Is OF TNTERNATIONAL. CHI.I) AnnuC- TUIN 27 SEPT.-I Ocm 2002 24 (Mar. 2003) [hereinafter 2002 SPE IAL COMMI&SION]. For a summary of some of the specific harms children can experience, see.jay G. Silverman et al., (hild Custody Determinations iii Cases bvolving btimate Partnem Violence: A Human Rights Analy- sis, 94 Asm. J. PUB. HEALTH 951 (2004). The article explains: Children's continued exposure to abusive parents may place them at increased risk for a range of serious health concerns. Children of women who have been abused by a male partner are at very high risk of being abused by these same mien, with approximately half of all children of battered women abused by their mothers' abusers. Such children have been found to suffer high rates of mental arid physical health concerns (e.g., headaches, failure to thrive, vomiting, diar- rhea) and are more likely to report distress related to postdivorce parental visitation. Children exposed to a male partner's abuse are also at prenatal risk; violence against pregnant women is associated with very preteri labor and deliv- cry, very low birthweight, and fetal or neonatal death. Id. (citing studies). 67. See, e.g., Aldinger v. Segler, 263 F. Supp. 2d 284, 289 (D.P.R. 2003) ("While there has been violent behavior between the parties in this case, there are no allegations of direct UNIVEISITY OF SAN FRANCISCO LAW REVIEW [Vol. 38 courts that recognize a link may find that potential harm to the child does not reach the level of severity required by the article 13(b) defense."' Nor is there necessarily congruence between the violation of a parent's or the child's human rights and the return of the child to an intolerable situation. For example, returning a boy to a legal system that severely discriminates against his mother may violate the mother's rights, but if the child is returned to a loving father, the return may not be "intolerable" for the child. Finally, an interpretation that renders article 20 redundant violates the basic canon of construction that provisions should not be read to render one provision redundant.69- The Hague Convention's 7 legislative history, as well as statements by the Permanent Bureau, 0 indicate that article 20 was meant to have a separate function. b. Uniformity of Case Law The article 20 defense has been rejected in cases with varied facts.7 1 This virtual uniformity of results should not provide courts an physical or psychological abuse against the children."); Whallon v. Lynn, 230 F.3d 450 (1st Cir. 2000); see alsoJacques Chamberland, Article 13(1)(b) and Domestic Violence: The Canadian Situation, 5 Juc:(s' NEwsL.rn Ft 17, 19 (Spring 2003). The article states: As a matter of fact, one can say that, but for a few exceptions, the parent opposing the return of the child on account of the situation of domestic violence prevailing at home, did not succeed in his or her efforts to convince the judicial authorities of the validity of the defense Witdin the meaning of Article 13(1) (b). Id. (reviewing Canadian law). 68. See Sonderup v. Tondelli, 2001 (1)SA 1171, 34, 46 (CC). 69. SeeSullivan Y. Kidd, 254 U.S. 433, 439 (1921) ("[A]IH parts of a treaty are to receive a reasonable construction, with a view to giving a fair operation to the whole."); Geofroy v. Riggs, 133 U.S. 258, 270 (1890) ("It is a rule, in construing treaties as well as laws, to give a sensible meaning to all their provisions, if that be practicable."); N.W. Life Assurance Co. v. Comm'r, 107 T.C. 363 (1996) (interpreting Convention with Respect to Taxes on Income ard on Capital, Sept. 26, 1980, U.S.-Can., T.I.A.S. No. 11,087, so as not to maKe a provision redundant). 70. TllRD SPFI1A. COMM'N, RE'ORT OF T[E TiinRD SPECA, COMMISSION MEETING. TO RI.Vi'W -ME OP'RATION OF i-'m HA-z,'< Co.. vHiriON ON THE. ClVn. Aspmutcs OF INTERNA- TIONAL CILD ABDUCTriON 77 (Mar. 1997) [hereinafter RE'ORT OF THE T-RI) SI'E(IA. CO)MMISSION]. 71. See HAeuv CONFEREN(v ON PRIVATE INT'L. LAW, THE INTERNATIONAL CHILD)AnBDrG TION DATABASE. ("INCADAT"): "W (Arg. Sup. Ct.June 15, 1995), at http://ww.heeh.net/ inca(at/fillcase/0362.itn (last accessed Aug. 24, 2004) (stating that the Hague Conven- tion was consistent with the Convention on the Rights of the Child's requirement that children's best interests be a primary consideration, but reversing return order because, inter alia, separation of child from mother satisfied article 13(b) standard given psycholo- gist's testimony); Dep't of Families, Youth & Cmuty. Care v. Bennett, (2000) 26 Fam. L.. R. 71 (Farn. Ct. Austl.) (rejecting article 20 argument based on allegation that courts in the child's habitual residence Would not be able to consider appropriately the child's ethnic Summer 2004] ,WTICLE 20

heritage in determining custody); Emmett & Perry (1996) FLC 92-645 (Fam. Ct. Austi.), available at http://ww.austlii.edu.aui/cgi-biri/disp.pl/u /cases/cthi/famity%5fct/unrep 946?query=title+%28emmett%22+%29 (last accessed June 14, 2004) (rejecting article 20 argument that the courts in the child's habitual residence might award custody to a father who might betroth his daughters to older men); McCall v. State Cent. Auth. (1994) 18 Fao. L. R. 307 (Fain. Ct. Austi.) (rejecting proposition that courts acting pursuant to the Hague Convention had to consider the wellare of the child as the paramount consideration, pursuant to section 64(1) (a) of the Family Law Act, because the courts' jurisdiction under the Hague Convention did not arise from the Family Law Act but from the external affairs power); Struweg v. Struw'eg, [2001] CarswellSask 420, 1 18, 19, 21 (Can.) (finding one parent alone lacks the standing to decide whether Canadian child will exercise his or her rights under the Charter of Rights and Freedoms to "remain in" Canada, but even if right existed, right is not infringed by family law orders relating to custody or residence of a minor child, and even if it is infringed, it is a reasonable linitation justifiable under section one of the Charter); H.At;uv CONF.RENCE ON PmvAn. IN'), LAW, TH. INrTRNA- TIONAL Ci-niD ,AiiilcTioN DATAS.VSE ("INCADAT"): D. v. B. (Quebec Super. Ct. 1996), at http://iw'.hcch~net/incadat llcasei0369,htm (last accessed June 14, 2004) (holding Hague Convention did not violate section 6(1) of the Canadian Charter of Rights and Freedoms because that provision applied to criminal extradition); Parson v. Styger, [1989] 67 O.R. 2d 11 (Ontario Ct. App.) (rejecting argument that a return order pursuant to the Hague Convention for a Canadian child violated every Canadian citizen's right to remain in Canada because right to remain in Canada is subject to the Hague Convention, and the return of a Canadian child to a foreign country did not deny the child's fundamental rights under the Charter); G. & G. v.Decision of OLG Hamm of 18Jan. 1995, 35 T.L.M. 529 (1996) (rejecting argument, inter alia, that order of return would violate the child's right under article 16(2) of the German constitution not to be extradited or the child's right under article 2(l) to the free development of his or her personality); W. v. Ireland, [1994] I.L.R.M. 126 (Ir. H. Ct.) (finding that Hague Convention did not inherently violate various provisions of the Irish Constitution, including the State's duty to respect, defend and vindicate the personal rights of the citizen, because article 20 of the Hague Conven- tion requires courts to consider the Irish Constitution); C.K. v. C.K., [1993] I.L.R.M. 534 § 6 (Ir. H. Ct.) (holding that order of return did riot violate principle that children's welfare is of fundamental importance in Irish law); Sonderup v. Tondelli, 2001 (1) SA 1171 (C C ) (rejecting argument that the Hagme proceeding violated the South African constitutional requirement that the child's best interests have "paramount importance" in every matter concerning the child); HAG.;r. CONm nm. ON PRIVATE INT'l. LAW, INCADAI: HC/ EICII 427, (Switz. Sup. Ct. Mar. 29, 1999), at http://212.206.44.26/index.cfinfujseaction= corivtext.showfull&Ing-1&code=427 (last accessed June 14, 2004) (summary of case) (rejecting argument that the return of the children violated the mother's freedom of movement inherent in Swiss public policy because if site obtained sole custody in Israel she would be free to move abroad and relocate with her children); IIA(;U ,.CO NFER-NE c. ON P arVTEINT'l. L w, INC(ADAT: M. v. F (Fr. Ct. App. Mar. 29, 2000), at http://www.hcch. net/incadat/fullcase/0274.htin (last accessed June 14, 2004) (rejecting article 20 argument based on allegation that the courts in the child's habitual residence required that mother exercise her access rights to date in that country); H.AGtUE CoN.'EtRNcI ON PRtVATE IN-r'. Lxw, INCADAT: Drc-stON OF THE,OmUS;RERICI-T nts KiNTONS LuzF-RN, (Switz. Ct. App. Aug. 31, 2001), at http://212.206.44.26iindex.cfmi?fuiseactio=convtext.showFull& Ing=18code=418 (last accessedJune 14, 2004) (summary of case) (rejecting article 20 argument based on allegation that the law of the child's habitual residence required joint parental authority in the absence of a court decision); Mendez Lynch v. Mendez Lynch, 220 F. Stipp. 2d 1347, 1365 (M.1). Fla. 2002) (rejecting article 20 argument based on allegation that tme child's habitual residence was facing a political, economic, and judicial crisis); Fabri v. Pritikin-Fabri, 221 F. Supp. 2d 859, 873 (N.D. Ill. 2001) (rejecting argument that UNIVERSI'IY OF SAN FRANCISCO LAW REVIEW LVol. 38 independent reason to disregard article 20. First, reference to prior case law is only necessary (and potentially persuasive) if article 20 were ambiguous. 72 While the meaning of "would not be permitted" may be ambiguous,7 3 the availability of the defense is not. It is im- proper for a court to use prior case law to suggest that article 20 is a dead letter. Second, the prior cases are largely distinguishable from the domestic violence victim's invocation of article 20. Only one of the cases involved an allegation that the respondent's physical integrity or life was at stake, and that court's opinion implied that the safety concerns were insufficiently substantiated.74 Rather, most cases rejecting returning the children would violate the right to travel or the right to lamily privacy because respondent is not being ordered to return the child to Italy and there is no reason to dhink Italian court would not be fair in making custody decision); Freier v. Freier, 969 F. Supp. 436, 443-44 (E.D. Mich. 1996) (rejecting article 20 argument based on allegation that the child's habitual residence restricted the respondent's freedom to travel); March v. Levine, 136 F. Supp. 831, 854 (M.D. Tenin. 2000), all'd, 249 F.3d 462 (6th Cir. 2001) (rejecting article 20 argument based on allegations that petitioner had threatened respondents and witnesses with death and that respondents would be unable to get a fair trial in Mexico); Hazbun Escaf v.Rodriquez, 200 F. Supp. 2d 603, 614 n.40 (E.D. Va. 2002) (rejecting article 20 argument based on allegation that the child's habitual residence had denied the respondent procedural due process); Janakakis-Kostun v.Janakakis, 6 S.W.3d 843 (Ky. Ct. App. 1999) (rejecting article 20 argument based on allegations that the police in the child's habitual residence had treated the respondent and her child inhumanely); Caro v. Sher, 687 A.2d 354, 361 (N.J. Super. Ct. Ci. Div. 1996) (rejecting article 20 argu- inent based on allegations that the court proceedings in the child's habitual residence were inefficient); Ciotola v. Fioeca, 684 N.E.2d 763, 769 (Ohio Ct. Coin. Pl. 1997) (rejecting article 20 argument based on allegation that the child's habitual residence would riot treat the child's best interest as foremost). 72. [A] court shall not, through interpretation, alter or amend the treaty-" when the text is unambiguous. Victoria Sales Corp. v. Emery Air Freight, Inc., 917 F.2d 705, 707 (2d Cir. 1990); Xerox Corp. Y. United States, 41 F.3d 647, 652 (Fed. Cir. 1994). (f. DP v. Com- monwealth Cent. Auth., (2001) 180 A.L.R. 402 (Austl.) (Gaudron, Gumnmnow, Hayne, .1J) ("Exactly what is meant by saying that reg 16(3) (b) is to be narrowly construed is not self- evident. On its face reg. 16(3) (b) presents no difficult question of construction and is not ambiguous."). The dissenter in the case wrote., [Ijt is unhelpful to say that reg. 16(3)(b) [which mirrors article 13(b)] is to be construed narrowly. In a case where there is no serious question of construction involved, such a statenient may he misunderstood as meaning that the proision is to be applied grudgingly. The task of the decision-maker is to give effect to the regulation according to its terms. Id. (Gleeson, CJ., dis.senting). But seeS (A Child), [2002] EWCA Civ. 908 (Eng. C.A.) (Ward, LJ.) ("[Wie are not confident that this court would take ie same view as the nia ority in the High Court of Australia."). 73. See discussion supra Part II.B.I. 74. See March v. Levine. 136 F. Supp. 831 (M.D. Tenn. 2000), affid 249 F.3d 462 (6th Cir. 2001). Although the respondents alleged that the petitioner's threats to their lives and their witnesses' lives interfered with their ability to obtain due process in Mexico, the court saw "no clear evidence" that their rights would not be protected in Mexico. id. at 855. While tie court did not specifically address whether the respondenmts' safety was at risk, the opinion, read as a whole, suggests that itdid not think so. There is one other case involving Summer 2004] ART'ICLE 20 the article 20 defense involve rights upon which reasonable limits could be (and presumably were) imposed, such as the right to travel. Third, to the extent that some of the prior cases are grounded either on a misunderstanding of the significance of the Reporter's statement or on the U.S. State Department's unreasonable interpretation of article 20, these cases should also be discounted. 7- Although maintaining a uniform interpretation of the Convention is a valid objective, 76 and while privileging a uniform interpretation over a correct interpretation might be warranted if justice were not impaired, uniformity should not be prized at the expense of a just outcome for domestic 7 7 violence victims. Moreover, the case law is not entirely uniform. The article 20 defense has been accepted in a few underreported cases. A Spanish court accepted the article 20 defense when it thought that the mother would not receive due process in the courts of the child's habitual residence. 78 A French court implicitly accepted the defense when it found that the mother would be unable to relocate with her child from the child's habitual residence in violation of the mother's a respondent whose life might have been threatened by returning to the child's habitual residence, see HAGEr CONFERE.NCE ON PRIVATE INT'l. LAW,INCADAT: Al. v.F. (Fr. Ct.App. Mar. 29, 2000), at http://www.hcch.neti/incadat/fullcase/0274.hti (last accessedJune 14, 2004), but the opinion does not contain enough information about the violence to make any sort of informed judgment about the mother's allegations. 75. Cf. Benjamins v. British European Airways, 572 F.2d 913, 919 (2d. Cir. 1978) (holding that Warsaw Convention creates a cause of action, thereby reversing its twenty- year old legal position, because, amnong other things, the "paucity of analysis that accompa- nied the creation of the rule"). 76. See, e.g., RrosrA':MFNr (THwli) OF FORIi(.N Ri,.ruONs § 325 cmt. d (1987) ("'Trea- ties that lay down rules to be enforced by the parties through their internal courts or administrative agencies should be construed so as to achieve uniformity of result despite differences bet-ween national legal systems."). 77. See Weiner, Navigating the Road Between Unifurmniy anl Progress, supra note 8, at 292-93. 78. In Re S,Auto de 21 abril de 1997, Audiencia Provincial Barcelona, Secci6, a Span- ish appellate court refused to return a child to Israel because the return order would violate paragraph 24 of the Spanish Constitution, which said that "[a l persons have the right to the efte.ctive protection of the judges and courts in the exercise of their rights and legitimate interests, and in no case may there be a lack of defense." See SPAIN CONST. art. 24(1) (amended 1992), in CoNSTITTIONS OF THE COUNrIRIS OF THE WoRn 7 (Gisbert H. Flanz, ed. 2003). The flither had been granted sole custody of the child by a religious court in Israel because the mother was a "inoredet" or "rebellious wife" since she took the children to Spain on an interim basis. The Spanish court said that the Israeli order was made to punish the mother, was made with no account of the child's best interest, and was con- triaiT to the Hague Convention's purpose to restore the status quo ante. A surnmmary of the case is available on the Hague Conference's website. See HAGUE CONFERENCE ON PIVAT. INT'. LxIWv, INCADAT: Re S, at littp://212.206.44.26/inlex.cfhi?ftiseaction=convtext. showFull&Ing-&code-244 (last accessed June 14, 2004). UNIVERSI'TY OF SAN FRANCISCO LAW REVIEW [Vol. 38 rights.7" Several Australian courts have recognized in obiter dictum that an article 20 defense exists if the abductor would be unable to appear at a custody contest in the child's habitual residence for legal"" or personal reasons.8' Some judges have even acknowledged that returning a child to a location where the mother is inadequately protected from domestic violence would violate the fundamental principles relating to human rights of their country, although they did so under the rubric of article 13 rather than article 20.82 The fact that some judges have accepted the article 20 defense and others have ac- 8 3 cepted its premise gives hope that article 20 can be revived.

III. The Need for a Vital Article 20 Given the foregoing, strengthening article 20 seems possible, albeit challenging. The effort is justified because article 20 potentially offers so much. Simply, the attacks on article 20 have had two significant negative effects that deserve correction: First, the attacks have led courts to ignore respondents' pending refugee claims. Second, the attacks have blocked an appropriate defense for domestic violence victims who flee with their children when the domestic violence victims cannot receive adequate protection in the child's habitual residence. A vital defense might lead to different results in the future and also

79. See Ministire Public v. Mine. Y, T.G.I. P4rigueux, Mar. 17, 1992, D. 1992, P. 315 (Fr. Dist. Ct.). The court did not rule on an article 20 defense, but rather held that a ne exeat clause was not sufficient to give the father "rights of custody" because to do so would result in the mother's rights being violated. See also BI.xuo-nT & MCEr EY, supra note 15, at 175 (describing decision of the Tribunal de Grande Instance at P4rigueux in S. v.].); Weiner, Navigating the Road Between [Tnifornmity avd Pmigres, stpa note 8, at 311-16 (discussing case). 80. See State Cent. Auth. v. Ardito (1997) (Farn. Ct. Austl.) (No. ML 1481/97) (holding that it was an "intolerable situation" under article 13(b) that the mother, who had consented to return Nsith the child, would be unable to accompany her young child back to the United States to participate in the custody litigation because of visa problems and stating in obiter dictum that ordering the child's return under such circumstances would violate article 20). 81. See Dep't Families Youth & Cnmty. Care v. Bennett (2000) 26 Fam. L. R. 71 (Farn. Ct. Austrl.) (extending in obiter Ardito's holding to cases involving an abductor who cannot appear at a custody contest in the child's habitual residence becanse of the respondent's own personal situation). 82. See De los Rios Carmona v. Melendez Rosa, 141 D.P.R. 282 (P.R. 1996) (opinion of President Mr. Andreu Garcia & Associate Judge Ms. Naveira de Rodon); see also Struweg v. Struweg, [2000] 208 Sask. R. 243, 50-51, 57-58 (holding that the level of violence was not sufficient to maintain the claim). 83. There may be even mnorejudicial opinions in which article 20 has found support. See, e.g., A re Child Abduction arid Enforcement of Custody Orders Act [1991], 1996/568, at 8 (Transcript), 14 Oct. 1998 (Ir. 11. Ct.) (discussing initial decision prior to undertakings). Summer 2004] ,MrI1CLE 20 help set the tone for the next Special Commission meeting to review operation of the Hague Convention.

A. Refugee Claims The intersection of Hague Convention defenses and refugee claims is a relatively new phenomenon,8 4 fueled partly by the recent recognition in countries that process a large volume of Hague Con- vention applications that domestic violence can be a basis for asylum.8 5 Since a domestic violence -victim might need permission to remain in the country to which she and her child have fled, 6 she might seek asylum based upon the persecution she will experience if

84. See, e.g., Kovacs v. Kovacs, [2002] 212 D.L.R. (4th) 711 (Ontario Super. Ct.); Gon- zalez v. Gutierrez, 311 F.3d 942, 942 (9th Cir. 2002). Cf. S (Children) 2 F.C.R. 642 (Eng. C.A. 2002) (affirming trial court's order to return children to India despite the fact that mother was granted exceptional leave to remain in England and children were her depen- dents); Osman v. Elasha 2000 Fain. 62 (Eng. C.A. 2000) (ordering return of two children to the Sudan to custody of paternal grandmotier despite the fact that motler's asylun application was pending and counsel alleged that a grant of asylum might reasonably stop mother from returning to Sudan); In re Application of Salah, 629 N.W.2d 99, 101-02 (Minn. Ct. App. 2001) (noting that respondent had claimed she was a victim of petitioner's domestic violence, that she had a provisional grant of asylum, and that she could be deported from Canada, the child's habitual residence, since petitioner had cancelled his "af fidavit of support"). 85. Domestic violence can be gender-related persecution. See Islam v. Sec'y of State for the Home Dep't, 38 I.L.M. 827 (Eng. I.L. 1999); IMMIG;R XON APPEU,-lTE Atri., Asy- utM G.Nmt'nm Gu(tDEtUNES § 2A.17 (2000); Minister for Immigration & Multicultural Affairs v. Khawar 210 CLR 1, *12 (H.C. Austl. 2002); Re KM, Refugee Appeal No. 2624/96 (N.Z.), sumzaiized in R.FGFE LAW CTrR., GENDER A'Ws.uM Lkw IN DIFFERENT C 0NT-RiEs: DFEcS1ONS & Gumr:imLs 660 (1999); REFUGrF PRo EGTJONr Dfv., WOmEN EF'G:E CI-AtMANFrS FEAR3NG Gr. Et.R-Rt-T.TED PERST.IUTION: UPDATE § A(1) (3) (2003); T-98-08454, 141 RefLex, June 21, 2000, at http://iwww.irb.gc.ca/en/decisions/reflex/index.htm (last accessed June 14, 2004); T. (O.S.) [20001 C.R.D.D. No. 80 (Can. 1mm. & Ref. Bd.); Begum v. Canada, [2001] C.F.P.I. 59; Hernandez v. Canada, [2001] F.C.T. 643. Together England, Australia, New Zealand, and Canada process approximately thirty-one percent of the overall IHague Con- vention applications for children's return. Iowe, StatisticalAnatysis, supra note 6, at 7. 'The United States processes another twenty-two percent of the overall Hague Convention applications. Id. While the law in the United States is less clear about if and when domestic violence can constitute a basis for asylum, some immigration judges grant asylum to domestic violence victims. See Stephen M. Knight, Seeking Asylum From Gender Persecution: Progres Anid Unertain., 79 INn- RPR.TE:R Rs.iEAZ s 689, 690 (2002) (noting a "stmall but significant number of women" have been granted asylum in the United States recently); see also GrR. FOR Gt'NDER & REtULSE-. STtUn.s, CGRS C.s, StUM.ARi-.s, at http:iiww.uchastings.edui cgrs/summnarics/persecute.htnl (last accessed June 14, 2004) (showing that fifty-three individuals were granted asylum in the United States since 1994 based upon domestic violence). 86. Forty-eight percent of abductors are not nationals of the country to which they flee. Lowe, Statistical Analysisg, supra note 6, at 9. Lowe mentions that a wide variation exists by country. Id. For example, all eight of the persons who abducted to Hungary were Hun- garian nationals, but only twenty-two percent of the individuals fleeing to Australia were UNIVERSIIY OF SAN FRANCISCO LAW REVIEW [Vol. 38 she is forced to return to the child's habitual residence.8 7 While her application for refugee status is pending, or perhaps after it is granted, the other parent may seek the child's return pursuant to the Hague Convention. Early indications suggest that some judges are unwilling to stay the Hague proceeding until resolution of the refugee claim.,, An il- lustrative case is Kovacs v. Kovacs,89 decided by the Ontario Superior Court of Justice. The case involved a woman who fled Hungary with her children. When they arrived in Canada, she sought refugee status for both herself and her children,90 alleging that the authorities in Hungary would not protect her against her very violent husband because she was a Roma (gypsy)."t While the application for refugee status was pending, the father sought the immediate return of the younger child, his biological son, pursuant to the Hague Convention. The court refused to delay the Hague petition's resolution. The case raised many issues, but central to the discussion here are the court's reasons for not awaiting the decision on the refugee applications. The court was very concerned that the Hague proceeding occur expeditiously and believed that the "tenets of the Hague Convention will be defeated" if the Canadian refugee process ran its normal course. 92 The court was also troubled by the fact that the

Australian nationals. Id. at 10; see also REUNITE, supra note 6, at 20 (noting that in sixteen of twenty-two cases the "abducted-to" jurisdiction was the home country of the abductor). 87. For example, in Gonzales v. Gutierz, 311 F.3d 942 (9th Cir. 2002), the respondent had an application for asylun pending during the Hague proceeding. Because the Ninth Circuit reversed on the issue of whether the petitioner had rights of custody, it did not review the district court's denial of the respondent's affirmative defenses under articles 13(b) and 20. See id. at 948 u. 11. A June 25, 2002 decision by the immigration judge granted Ms. Gutierrez's application for asylum based on her status as a victim of domestic violence. See Gonzales v.Gutierrez, No. D040063, 2003 IWL222360,51 (Cal. Ct. App. Sept. 30, 2003). 88. See, e.g., Kovacs v. Kovacs, 212 D.L.R. (4th) 711 (Ontario Super. Ct. 2002). Cf Gnzale, 2003 WL 22236051 (holding that issue of whether trial court should have stayed the UCCJEA action while abductor's asylum petition was pending was rendered moot by grant of asylum application, and concluding that mother's and children's asylum status did not preempt the UCCJEA action because Congress did not intend the "political asylum laws to broadly preempt the uniform statutory scheme pertaining to custody matters ...[and] there is nothing in the asylum law and the UCCEA that inherently conflicts so that a UCCJEA action would be necessarily barred"). 89. 212 D.L.R, (4th) 711 (Ontario Super. Ct. 2002). 90. Id. 3. 91. The basis of the respondent's refugee claim, in short summary, was the following: she was subjected to physical and psychological abuse by the applicants; on two occasions the child was physically abused by the applicants; and the State of Hungary was nwilling or unable to protect her and her child. Id. 1 14. 92. Id. 1 15, 75. Summer 2004] ARTFICL-E 20 mother alone was applying for asylum for her child and the father had no right to be heard in those proceedings '-3 The court concluded, To accept that one parent has a unilateral right to assert a refugee claim would invite any parent involved in a custodial dispute in another jurisdiction to come to Canada and assert a claim to refugee status on behalf' of' the child .... [Sluch an interpretation would drive a coach and four through the Convention and the CLRA [Children's Law Reform Act], which implements it. 4 The court's concerns are legitimate, but there were ways to recon- cile the immigration and Hague Convention proceedings so that the immigration case could conclude first and the Hague Convention could remain strong. For example, the Kovacs children could have received a designated representative in the immigration proceeding since their interests might have conflicted with their mother's interest,9-5 and the father could have been involved in the immigration proceeding as a witnessP 6 In addition, the immigration proceedings could have been expedited since a parallel Hague Convention case 9 7 was also pending.

93. Id. 1 37, 39. 94. Id. 1 148. In addition, the court thought this result best comported with the Cana- dian Charter. 'he Charter gave each parent an interest in the custody of the child and the Hague proceeding allows all parties to be heard. Id. 144-46 (citing the notion of "security of the persons" in section 7 of the Charter). 95. At the time Kovacs was decided, the Immigration Act, R.S.C. chs. 1-2 (1985) (Can.) (as amended), and the Convention Refugee Determination Division Rules, SOR/ 93-45 (Jan. 28, 1993) (Can.), were in effect. Under those provisions, once the senior immigration officer niade a determination that the mother and her children were eligible to make a refugee claim, the Convention Refugee Determination Division ("CRDD") of the Immigration and Refugee Board would determine whether the child should be appointed a representative. Kovacs, 212 D.L.R. (4th) 80. The CRDD should appoint a designated representative (other than the mother or father) if the children's interests conflict with their parents' interests Id. In fact, the Immigration Refugee Board's Convention Refugee Determination Division Handbook, chapter 12, stated, "The Relugee Division is required to designate a representative for any claimant who is 17 years of age or younger .. " Id. 59. However, new immigration rules came into effect on June 28, 2002 and may impact the ability to appoint a designated representative. See hImigration and Refugee Protection Act, ch. 27 (2001) (Can.); Refugee Protection Division Rules, SOR/2002-228 (2002) (Can.). 96. The hnmigration Act permitted a party, the refugee hearings officer, the Minis- ter's representative, or the Refugee Division to call the lather as a witness. See Immigration Act, R.S.C. chs. 1-2, § 67(2)(a); Kovacs, 212 I).I.R. (4th) 711, 56; see also Immigration and Refugee Protection Act ch. 27, §§ 165, 170(e); Inquiries Act, RS. (1985), chs. 1-13, §§ 4, 5 (1985) (Can.). 97. Seelmmigration & Refugee Protection Act, ch. 27 § 162(2) (2001) (the Refugee Division shall deal with proceedings "as informally and quickly as the circumstances and the consideration of fairness and natural justice permit"). Even if the immigration proceedings could not be expedited, the court still should let those proceedings conclude first. Speed oust never come at the expense of human rights. While several experts at the Special C ommission meeting in 2002 emphasized that "speed is an essential element," they UNIVERSI'1Y OF SAN FRANCISCO L W REVIEW [Vol. 38

Even absent these solutions, article 20 suggests that, at a minimum, a court should stay the Hague Convention proceeding until the asylum application is resolved. While article 20 arguably requires an outright dismissal of the Hague Convention petition if the respondent has a pending asylum application, 8 a stay is preferable. The Hague Convention proceeding may provide important remedies for cases in which the asylum claim lacks merit, whether or not return of the child is one of those important remedies (since a child may be deported anyway if the asylum case fails). For example, the judge adjudicating the Hague Convention petition may be the only authority who can award attorney's fees to the prevailing petitioner,99 assuming the respondent lacks other viable defenses, or who can request that the petitioner enter undertakings related to the mother's and child's safety. 1(0 The above argument assumes, of course, that returning a refugee's child pursuant to the Hague Convention constitutes a violation of "fnidamental principles of the requested State relating to the protection of human rights and fundamental freedoms."""° While lawyers and academics in each of the Contracting States should undertake the required analysis since article 20 references the law of the requested State,t 2 a brief examination of relevant public international law prin- also stressed that "it is important to ensure that the pursuit of speed does not detract from the rights of all parties being respected and the requirements of due process, which must not be neglected." See 2002 SPECA COM~ussION, supra note 66, at 17. 98. See infra text accompanying note 106. Granting the article 20 defense outright would be consistent with the need to resolve Hague Convention cases expeditiously. 99. See, e.g., 42 U.S.C. § 11607(b)(3) (2004). 100. It is beyond this Article to discuss what mechanism, if any, should be used to stay a deportation order if the mother has another viable defense under the Hague Convention. Presumably there are mechanisms (such as humanitarian parole) that might permit a mother and child to remain in a countr if, for example, an article 13(b) defense were established, even though the asylum application had failed. 101. Hague Convention on the Civil A-spects of International Child Abduction, supra note 1, at art. 20. 102. The Reporter suggested that the principles accepted by the requested State could be found in "general international law, treaty law," or "through internal legislation." Pr:fizt- VER:, ExPt LANATORY REPORT, supra note 16, at 461-62. The public interrational principles discussed here may have legal elfect in a particular country. See, e.g., FREDERIC L. KIniS, INTERNATIONAl. A.jm.s.amENTS AND U.S. lAW, ASIL INSx(.-T (1997), available at http:// ,wNWW.asil.orgiisights/insigh 10.htm (last accessed June 14, 2004) (explaining that international treaties have effect in U.S. domestic courts if they are "self-executing" or have been implemented by a federal law, but also noting that treaties may have "indirect effect in U.S. courts" because U.S. courts interpret federal statutes consistent with those obligations so that the United States does not violate its treaty obligations and U.S. courts would not permit an inconsistent state law to stand for the same reason); see also BLAIR & WI'INI'R, FAMIY Lw, sup-ra note 28, at 44-45 (explaining that most common law countries do not permit self-executing treaties, but that some civil law countries do permit them to varying Sumnmer 2004] ,WF,IC LE 20 ciples suggests that the argument may be available in many countries. The popularity of these human rights principles, as reflected by their inclusion in widely accepted international human rights instruments, suggests that they are probably also reflected in the laws of many nations. The international law framework also provides the necessary assurance that the domestic law principles are not merely local "public policy," but rather rise to the level of fundamental principles of human rights. The Universal Declaration of Human Rights states, "Everyone has the right to seek and to enjoy in other countries asylum from persecu- t tion."nu, Treaties' 14 and customary international law'0H, prohibit countries from returning or expelling refugees, or even applicants for refugee status, 10 6 to the place where the refugee's life, physical integ- degrees). Customary law and general principles of international law may also have relevance for domestic courts. For example, in the United States, this international common law is part of fderal common law. See The Paquette llabana, 175 U.S. 677, 700 (1900) (applying international custom that exempted coastal fishing vessels from capture as prize of war). It is also part of common law in many other common law countries. Civil law countries often recognize this type of international common law through constitutional provisions, sometimes giving it supremacy over domestic law. See BLAIR & WEINER, Fkmn. LAW, supra, note 28, at 48. 103. hivenal Decaration qf -uman Rights, .A.Res. 217A (III), U.N. GAOR, 3d Sess., Pt. 1, resolutions at 71, U.N. )oc. A/810 (1948) (hereinafter TDHR]. But seeJalnes A. R. Naftinger, The GeneralAdmissionojAhens under InternationalLaw, 77 ANI.J. INT'L. L. 804, 839, 847 n. 186 (1983) (explaining that while the UDIIR gives the right to the individual to seek asylum, there is no duty imposed on a state to grant it). 104. This principle of non-refoulement "is expressed in the Declaration on Territorial Asylum; in the 1951 Convention Relating to the Status of Refugees; by incorporation, in the 1967 Protocol to the latter agreement; and in other agreements, such as the American Convention on Human Rights." Naftinger, sun'a note 103, at 839. 105. See Guy S. GoodNin-Gill, lefugeps and Responsibihty in the Twienty.-First Centuy: More Lessons Learnedfrom the South Paafick 12 PAc. RIM I. & Po '.J. 23, 29 (2003). The principle of non-refoulelnent may even rise to the level of ju cogens. Jmo cogea is a peremptory norm of international law from which no derogation is permitted. Seejean Allaine, The fJs ogesr Nature of Non-Refouement, 13 INT'i.J. [,xfo'E: L.533, 534, 538-42 (2001), availableat http:/ /vNv3.oup.co.k/reflawhdbVolume_13/IssueO4/130533.sgm.abs.html (last accessed June 14, 2004). 106. While the 1951 Convention Relating to the Status of Refhgees, july 28, 1951, 189 U.N.T.S. 150 ("the Geneva Convention"), and the 1967 Protocol relating to the Status of Refugees,Jau. 31, 1967, 606 U.N.T.S. 267, do not address this issue specifically, the Office of the U.N. High Commissioner for Refugees (UNICR) has addressed it and its determinations are authoritative, pursuant to article 35 of the Geneva Convention. It states that a person can qualify as a refugee even before the person's status is legally determined. See Handbook on Procedurev and Critetia.br Determining Rejugee Status, supra note 13, 28, 192 (vii)(explaining that recognition of refugee status does not make a person a refgee, but only states that which is true); seealso Resolution on Minimum Guarantees for Asylum Procedures § 7, 1996 0.J. (C 274) (E.U. Council Resolution). Applicants for refugee status are protected from refoulement even if the applicant has been denied asylum but is await- UNIVERS1'IY OF SAN FRANCISCO LTW REVIEW [Vol. 38 rity, or liberty is threatened. This principle of non-refoulement also prohibits countries from taking actions that compel refugees to return to the place of persecution. 117 Returning a refugee's child to such a territory qualifies as a coercive act that violates this fundamental principle of human rights." 8 Empirical evidence, in fact, shows that most mothers, even mothers whose safety is at risk, will return with their children when those children are returned pursuant to the Hague Convention. 1)9 The child's rights are also violated when he or she is returned while an application for refugee status is pending. The child may have applied for asylum because the child has been targeted for persecution or because the child has a well-founded fear of persecution from membership in the same social group as his or her mother, i.e., the family.t I( Sending the child back in this situation is a direct infringe- ing resolution of an appeal. Handook on Procedures and Criteriafor DeterminingRe'/ugee Status, supra note 13, 1 192 (vii). 107. See, e.g., 1951 Convention Relating to the Status of Reftigees, supranote 106, at art. 33 ("No Contracting State shall expel or return ("Refouler") a refugee in any manner what- soevo to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.") (emphasis added); Convention Governing the Specific Aspects of Refugee Problems in Africa, June 20, 1974, art 2(3), 1001 U.N.T.S. 45. The latter states, No person shall be subjected by a Member State to measures such as rejection at the frontier, return or expulsion, which would compel him to return to or remain in a territory where his life, physical integrity or liberty would be threatened for the reasons set out in Article I, paragraphs I and 2. Id. (emphasis added). 108. Immigration law is typically structured to prevent a refigee's child fron being returned. Countries often have provisions regarding family reunification and derivative beneficiaries. See Sonja Starr & Lea Brilmayer, Family Separation as a Violation of international Law, 21 BERKEL.EvJ. INT'i. L. 213, 260-61, 276, 278-79 (2003); James C. Hathaway & R. Alexander Neve, Mlaking InternationalRiugee Law Relevant Aguni: A Psoposalf!r Collectivized and Solution-Oiented Protection, 10 HAMy. Hum. R-rs. J. 115, 173-74 (1997); CANADIAN TAsK FORCE ON MENTAL IEALI.I ISSiES AzFFE(,rNG IMMIGrAWNTS & REF(;Ers, AFTER THE DOOR IsS O'ENEDm ch. 2, 10 (1988). There is recognition that family unity is an "essential right of the refugee." See Family Protection Issues, U.N. Executive Commission of the High Commis- sioners Programme, 6-7, U.N. Doc. ECi49/SC/CRP.14 (1999) (citing Final Act of the 1951 U.N. Conf. of Plenipotentiaries on the Status of Refugees and Stateless Persons, recommendation B). 109. See REUNITE, supra note 6, at 35 (thirteen out of fourteen mothers who abducted their children returned to the child's habitual residence despite threaLs to their, own safety). Cf. S, [2002] 3 F.C.R. 43, 16, 31 (Eng. C.A.) (mother assuredjudge that if the child were ordered to be returned to Israel the mother would return too and care for the child pending the outcome of a welfare hearing despite the fact that mother suffered from panic disorder and agoraphobia that could be debilitating because of hostilities there). 110. See CUAst-lus GORDON 1 T M.., InMeRArtoN LAW & PRocxouu-s § 33.04(1) (b) (ii) (B) (II) (2003); REFUGE PROTECTION Div., INTERPRETATION OF TE CONVENTION R FUGEE DEFINITION IN TIHE CAsi. L.w § 9.4 n.148 (2002) ("Since 'family' may constitute a particular Summer 2004] ,Al,tICLE 20 ment of the child's rights. Alternatively, the child may be a derivative beneficiary to the mother's application. t ' Under this second scena- rio, the child's right to be with his or her mother has been abridged. Family unification is of paramount importance in human rights law.'1 2 Although the child arguably has a right to be "reunified" with the left-behind parent too, at this stage of the proceedings the child's ighLs should be interpreted in favor of the child's mother, the victim of the persecution, and not the father, the alleged persecutor. After all, the court's decision to stay the Hague Convention petition is only temporary pending the outcome of the asylum proceedings, and the custody contest will ultimately resolve the long-term allocation of parental responsibility consistent with the child's rights. The Kovacs approach, whereby a court essentially ignores the pending asylum proceeding, need not be persuasive to future courts either inside or outside of Canada. The resolution of the conflict between refugee law and child abduction law was obiter dictum in Ko- vacs. It3 More importantly, the Kovacs approach may be a poor policy choice for many countries. The asylhn adjudicator may be in the best position to decide the flactual issues common to both proceedings. In some countries, the asylum process has been fine-tuned to address specific issues persecuted people face when fleeing persecution. Asy- lum procedures often have relaxed rules of evidence because persecuted people commonly flee with little "formal" documentation of the social group .... a relative who is targeted, albeit as a secondary object of the persecutor's animosity, may base his or her claim on direct persecution by reason of membership in a particular social group."). 111. The "derivative beneficiar'y" status stems from the Principle of Family Unity, which was recognized by the Final Act of the conference that adopted the 1951 Refugee Conven- tion, and which is now observed by the majority of States whether or not parties to the 1951 Convention or the 1.967 Protocol. See Handbook on Procedures and Criteriafor Delermining Refugee Status, sulpa note 13, 7 82-83. 'rhe Final Act of the Conference recommends that "Governments ... take the necessary measures for the protection of the refugee's family, especially with a view to ... [elnsuring that the unity of the refugee's family is maintained particularly in cases where the head of the family has fulfilled the necessary conditions for admission to a particular country. Id. 7 182. This, in turn, is based on the statement in the Universal Declaration of Human Rights, among others, that "the family is the natural and fundamental group unit of society and is entitled to protection by society and the State." DIIIR, supra note 103, art. 16. 112. See Starr & Brilmayer, supra note 108, at 218-19, 229-30, 234, 278, 282-85; see also suln-a note Ill and accompanying text; Convention on the Rights of the Child, Nov. 20, 1989, § 22(b), 1577 U.N.T.S. 3 [hereinafter CRC]. 113. The court did not return the child because to do so would put him in an "intolerable situation." Kovacs, 212 D.C.R. (4th) 711, 238. The applicant had a long criminal record for fraud and deceit, was a fugitive fronm justice in Hungary, and the court feared that he would abduct the child from Hungary if the child were returned. Id. 234, 237. UNIVERSI'Y OF SAN FRANCISCO LAW REVIEW [Vol. 38 situation from which they are fleeing. 114 The asylun adjudicator may also be better suited to assess the abductor's credibility about the domestic violence. For example, in the United States, federal courts have ,jurisdiction to adjudicate Hague Convention applications, but federal judges often have little experience with family -violence cases or inter- viewing children.'' 5 In contrast, the immigration authorities in the United States receive training specifically on these issues.' "6 Moreo- ver, the asylum adjudicator may be best positioned to obtain relevant information on the inability or unwillingness of the habitual residence to protect the respondent from the batterer's violence. In the United States, this type of evidence is readily available to immigration authorities, who may even have an affimative obligation to obtain it. 1,7 If the

114. See, e.g., Abankwah v.INS, 185 F.3d 18, 26 (2d Cir. 1999) ("WNithout discounting the importance of objective proof... it must be acknowledged that a genuine refugee does not flee her native country armed with affidavits, expert witmesses, and extensive documentation.") The Abankwah court rioted that the "requirement of evidence [to satisfy the objective element of the test for well-founded fear of persecution.] should not be too strictly applied in view of the difficulty of proof inherent in the special situation in which an applicant for refugee status finds himself." Id. (citations omitted). See also INS, EXvMINA- -nONSHANDBiiOOK § 16 (2003) ("The strictjudicial rules of evidence do not apply in administrative proceedings such as exclusion, deportation, adjustment of status, and other administrative actions under the jurisdiction of the Service."). Decision-makers may base their decisions on any evidence that is considered credible or trustworthy in the circumstances of the case. See id.;hmigration ant Refugee Protection Act, 2001, ch. 27, §§ 170 (g), (h) (Can.).See grrzeralls REFGF.-PROTECTION Div., A±SS ssM.NT OF C.ET.Dn.rrs IN CAIIS.S FoR RE;i't(;Ei PRo_Tr..rioN, ch. 1, § 1.1 (2002). Hague Convention proceedings also have somne relaxed evidentiary rules, for example, see Hague Convention on the Civil Aspects of International Child Abduction, supra note 1, arts. 22, 30, although these rules are less extensive than the relaxed rules governing some immigration proceedings. 115. This may not be true in other countries. See S (Children) [2002] 2 F.C.R. 642, 129 (Eng. C.A.) (Laws, L.J.); id. 39-40 (Thorpe, LJ.) (suggesting coordination between family law and immigration branches and that allegations of domestic violence be investi- gated and determined first by a judge of the Fanily Division). 116. See, e.g., INS, OFFI( OF IN'l AFFARS,, CONSIDERATIONS FOR ASYL!M OFFICEIPS A I.L-

DICATING Asv,.tM CLAINIS FROM WoM.N 5-7 (1995) [hereinafter "Pna'VAS COVEN Mi.AIO"l; DEP'T. OF STATE, GENDER GmUIDELINES FOR Ov.RsLx\s RrFUG;EE PROCESSIN; (2000); INS, GiuFN.I.ES FOR CILDREN'S ANSITUMIClAI-MS 6, 29 (1998) [hereinafter "JEFF WIss MIuMO"]. Immigration authorities in some other countries also receive such training. See generally CTR. FOR GENDER & REFIGEE STUDIES, GOVERNMENTM. GENDER GUIDELINES OF ASv ti AnJi- Im(kToRS, at http://isivw.u(:hastings.edu/cgrs/law/guilelines.htnil (last accessed June 13, 2004). 117. See, e.g., INS, BASlC Liv MANTI,.: Asvi.um 57-58 (1991) (describing asylun officer's duy to elicit evidence, including information favorable to the applicant's case, and describing how asylum officer may supplement the information with material provided by the Department of State, the Asylum Policy and Review Unit, the INS Headquarters Oflice of Refugees, Asylum and Parole, and "any other credible source including international organizations (such as UNHCR); private voluntary organizations; academic institutions (such as scholarlyjournals)" (citing 8 C.F.R. § 208.12)); seealso PHYLLIS COVEN ME.Mo, supra note 116, at 8 (describing how INS Resource Information (enter ("INS RIC") will be issu- Summer 2004] ,WF{ICLE 20 immigration case concludes first, the court adjudicating the Hague petition may have more evidence before it about the ability and willingness of authorities in the child's habitual residence to protect victims of domestic violence. This additional evidence will make the article 20 adjudication more accurate. Finally, the immigration adjudication should conclude before the Hague adjudication because women will otherwise be reluctant to raise an article 20 defense, no matter how meritorious it may be. Sim- ply put, a woman who raises the article 20 defense in the Hague proceeding and loses-a likely outcome given the narrowness of the article 20 defense at present-may be bound in the asylum proceeding by aspects of that determination under principles of collateral es- toppel. II Consequently, women who anticipate being granted asylum may be reluctant to raise the Hague Convention defense at all. Yet, these are the very individuals who should be the most successful with the defense.

B. A Meritorious Defense Article 20 should also provide a meritorious defense for some domestic violence victims who do not need to seek asylum. Both the mother's and the child's human rights are violated by the child's return. On the one hand, it violates the mother's human rights to send her child back to the place of past violence because the mother must then choose between her safety and her child's companionship. On the other hand, it violates the child's human rights to send the child to a country where the government cannot or will not address the mother's legitimate safety concerns so that the mother must stay away or to threaten the very mother-child relationship by encouraging the mother's return to a place where her life is endangered. A strengthened article 20 should provide a plausible defense for these women so long as the state of refuge recognizes the underlying fundamental principle of human rights in its domestic law and applies that princi- ing "alerts" and country profiles addressing the incidence of violence and the adequacy of state protection); Ji-xy Wuss Mt:Mto, supra note 116, at 16 (describing how INS RIC dist'ib- sites "comprehensive information concerning child-specific persecution and violations of the rights of children is distributed regularly and systematically" and how asylum officers also have access to the electronic database produced by the Center for Documentation and Research at the LNHCR in Geneva). 118. While Hague Convention decisions do not control decisions on the merits in cus- todv contests, see Hague Convention on the Civil Aspects of International Child Abduc- tion, supra note 1, at art. 19, they may control in asylum adjudications since asylum adjudications differ from icustody contests. UNIVERSI'1Y OF SAN FRANCISCO L REVIEW [Vol. 38 pie to purely internal matters." -) While it is beyond the scope of this Article to see if the fundamental principle of human rights is recognized by the laws of any particular Contracting State, the relevant public international law principles are explored for the same reasons as suggested above. 12" For those who are interested in the viability of this defense in the United States for domestic violence victims, I refer you to my companion article, Using Article 20,121 which suggests that the defense could be successful in the United States.

1. The Fundamental Principles Relating to Human Rights The international law of human rights has progressed dramatically since 1980. Of particular note is the increased attention to women's rights. Although the Convention on the Elimination of all Forms of Discrimination Against Women ("CEDAW") was adopted by the U.N. General Assembly in 1979,122 the same year the Hague Con- vention was being drafted, CEDAW was "consigned to little more than window dressing for many years."1 23 Not until the 1993 World Confer- ence in Vienna did women's rights take a more central position on the human rights agenda.1 24 There the slogan "women's rights are human rights" became the mantra of the Conference, and thereafter women's rights were treated as human rights by the international 25 human rights community. 1 As part of this increased attention to women's rights, violence against women became a significant focus. During the 1990s, states

119. See supra text accompanying notes 56 and 102. The relevant fundamental princi- pie can be expressed at various levels of abstraction. For instance, one can frame the principle as the state's affirmative obligation to address domestic violence or as a prohibition against gender discrimination. The broader the principle, the more likely one can find evidence that the country lotows the principle with respect to purely internal matters. Requiring that the findamental principle of human rights, however defined, be applied in a like manner to similar internal matters minimizes concerns about the possible breadth of article 20. 120. See supra text accompanying notes 102-103. 121. Merle H. Weiner, UsingArlich, 20, 38 FKAm.L.Q. (forthcoming 2004) (arguing that U.S. law could support a rmeritorious article 20 defense for some domestic violence victims who have fled to the United States). 122. Convention on the Elimination of All Forms of Discrimination Against Women, Dec. 18, 1979, 1249 U.N.T.S. 13 [hereinafter CEDAW]. 123. Rhonda Copelon, Internationalhuman Rights Dimensions oJ Intimate Violence: Another Strand in the Dialectic of Feminist Lawmaking, 11 Am. U. J. GF.NlDER SoC. PoCm' & L. 865, 866 (2003) [hereinafter Copelon, InternationalHuman Rights Dimensions]. 124. Report of the Wrld Conference on tIuman Rights, U.N. World Conference on Human Rights, 1993, at pt. 1, 11 36-44, U.N. Doc. A/CONF. 157/24 (1993). 125. Jolhanna E. Bond, Internatiynallnte,ectionat: A Theoretical & Pagt.aticExploration of Women's Isteii.ationalHtuman Rights Violations, 52 EmoRy LJ. 71, 77 (2003). Summer 2004] AITFIGLE 20 promulgated and adopted a vast array of legal instruments that recognized domestic violence as a human rights violation and imposed le- - gally binding obligations on countries to address it.2 1 Domestic violence was also integrated into the "mainstream" human rights agenda. For example, the Human Rights Committee in 2000 issued General Comment 28, which addresses reporting obligations pursuant to article 3 of the International Covenant on Civil and Political Rights on the equality of rights between men and women.1 27 States Parties must address domestic violence when reporting on the right to life

126. For example, GeneralRecommendation No. 19, Violence Against Woe n, was issued in 1992 by the Committee to End Discrimination Against Women (the monitoring body for the Convention to Eliminate All Forms of Discrimination Against Women). See GeneralRec- ommendation No. 19, Violence Against Women, U.N. I-ICR, 11th Sess., at 1, U.N. Doc. A/47/ 38 (1992) (stating that domestic violence is a type of discrimination that prevents women from enjoying equality of rights). The U.N. General Assembly in 1994 passed Resolution 48/104 Containing the Declaration on the Elimination of Violence Against Women. See Declaration on the Elimination ot Violence Against Women, G.A. Res. 48/104, U.N. GAOR, 48th Sess., U.N. Doc. A/48/104 (1993) (declaring violence against women a violation of women's rights and noting an urgent need for women to gain equality of rights). The Inter- American Convention on the Prevention, Punishment and Eradication of Violence Against Women was promulgated that same year. See Inter-American Convention on the Preven- tion, Punishment & Eradication of Violence Against Women, "Convention of Behkm do Pard.," June 9, 1994, 33 I.L.M. 1534. In 1995, the U.N. Fourth World Conference on Wo- men issued a very detailed Declaration and Platform for Action on Violence Against Wo- men, directing states to take a variety of actions to prevent, condemn, and punish violence against women. See U.N. Fourth World Conference on Women, Declaration and Platform for Action, 35 I.L.M. 401 (1996). Subsequently, there have been regular reports from Radhika Coomnaraswamy, the U.N. Special Reporter on Violence Against Women, Its Causes and Consequences, arnd the endorsement of these reports by the UN Human Rights Commission. See, e.g., Preliminasy Report Submitted by the Special Rappoiteur on Violence Again.st Woimen, Its Causes and Conequences, Ms. Radhika Coomrawai'v, in accordance with Commission on Human Rights Resolution 1994/45, U.N. ESCOR, 50th Sess., 1 32-41, U.N. Doc. E/CN.4/1995/42 (1994) (detailing important events in international law for domestic violence victims); Integration oj the Human Rights of Wonmen and the Gender Perspective: Vio- lence Against Women, U.N. CHR, 59th Sess., 26-36, U.N. Doc. E/CN.4/2003/L.52 (2003). Cases have also been successfully brought against States Parties to the Inter-Ameri- can Convention on the Prevention, Punishment & Eradication of Violence Against Wo- men. See, e.g., Maria da Penha Maia Fernandes, Case No. 12.051, Inter-Am Ch. I.R. 54-1 (2001) (No. 12.051). The obligations pursuant to treaties are in addition to any obligations imposed by customary international law. Some autlhors contend that customary international human rights norms include "(EDAW's Declaration that domestic violence is a violation of women's fundamental human rights." See Katherine M. Culliton, Finding a Mechanisim to Enforce Woenis Rights to State Protection. om Domestic Violence in the Ameicas, 34 IaRv. INT'i. LJ. 507, 537 (1993). Others contend that customary law protects the rights that are affected by domestic violence, such as the right to life and the right to physical integrity. See Elizabeth Dietz, Violence Against Women in the United States: An International Solution, 13 ARIZ. J. INT'L & COMP. L. 551, 568 (1996). There may also be relevant jns cogens norms, such as the right to be free from torture. See id. 127. See General Comment 28, U.N. IRC, 68th Sess., U.N. Doc. CCPR/21/Rev.1/lAdd. 10 (2000). UNIVERSI Y OF SAN FRANCISCO LAW REVIEW [Vol. 38 protected by article 6. In addition, "[t]o assess compliance with article 7 of the Covenant [prohibiting torture or cruel, inhuman or degrading treatment], as well as with article 24, which mandates special protection of children, the Committee needs to be provided information on national laws and practices with regard to domestic and other types of violence against women, including rape."1'2 8 The Human Rights Committee has made clear that the Covenant requires that a State 1 29 Party's legal response to domestic violence be effective. Children's human rights have also received significant attention since 1980. Protection of children is not a new theme in human rights law, as exemplified by the 1924 Geneva Declaration and the 1959 U.N. Declaration on the Rights of the Child. 13o The popular Convention on the Rights of the Child ("CRC"), which entered into force in 1990,131-' made these rights legally binding and provided an impetus for increased attention to children's issues worldwide. As part of this international attention to children's human rights, there has been a recognition that domestic violence harms children and that the elimination of domestic violence is also a children's human rights issue. For example, the CRC requires States Parties to "take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse . . . while in the care of parent(s), legal guardian (s) or any other person who has care of the child." 3,2 This provision prompted the Committee on the Rights of the Child to ask

128. See id. 11. Recently the Committee issued a strong resolution reaffirming its commitment to the topic of domestic violence. See, e.g., Integration of the Htumon Rights of Women and the CGender Pespective: Violence Against Women, supra note 126. 129. For example, in commenting on Sweden's report, the Committee stated, "The Committee notes with concern the persistence of domestic violence despite legislation adopted by the State Party. ....The State Party should pursue its policy against domestic violence, and in this framework, should lake more effective measures to prevent it and assist the victims of such violence." Considetation of Reports Submitted by States Parties Under Article 40 of the Covenant (Sweden), U.N. HRC, 74d Sess., 7, U.N. Doc. CCPR/CO/74/ SWE (2002). 130. See Declaration of the Rights of the Child, League of Nations, 0j. Spec. Supp. 28, at 66 (1924) [hereinafter Declaration of Geneva]; Declaration of the Rights of the Chil, G.A. Res. 1386, U.N. GAOR, 14th Sess., Supp. No. 16, at 19, U.N. Doc. A/4354 (1959). 131. CRC, supra note 112. 132. Id. at art. 19(1). Axticle 19(2) of the Convention on the Rights of the Child also states, in part, "Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention .... " Summer 2004] AIICLE 20

133 countries specifically about their efforts to end domestic violence. Because domestic violence harms children, UNICEF has also taken up the cause of ending domestic violence, 13 4 as have regional organiza- 5 tions such as tile Council of Europe.3 The sources of international law that impose obligations on states to address domestic violence are obviously varied.l' 6 These various sources do not merely impose negative prescriptions on states to avoid certain activities (such as discriminating against domestic violence victims in the implementation of the criminal law). Rather, they also impose affirmative obligations on countries to exercise due diligence to punish past incidents, prevent future incidents, and rehabilitate victims. 3 7 A state violates both its negative and positive obligations

133. For instance, the Committee criticized Jordan fbr "'the lack of adequate measures taken . . . to evaluate and address . .. domestic violence,' and recommended that Jordan study the problem and enact 'appropriate follow-up Ineasures.'" See Rs lit]L H/ODGKIN & PETER NEWt LL, IMPLEMENTATION H.'NnI)BOOK FOR THE CONVENTION ON THF RiGHTS OF T-nE CmenE 240 (1998) (citing Jordan IRCo, Add. 21, paras. 15 and 23). 134. See U.N. Children's Fund, Domestic Violence Against Women and Girls, 6 IN- NOG(ENTI Dim., 2, 2 (2000). 135. See, e.g., Recommendation No. R(85)4 of the Committee of Ministers to Member States on Violence in the Family (1985) (adopted by the Committee of Ministers on Mar. 26, 1985, at the 382d meeting of de Ministers' Deputies), available at http:// w.social.coe.int/en/cohesioni/fampol/recommi/family/R(85)4.htm. 136. See supirn note 126 and text accompanying notes 129, 133. See, e.g., Copelon, Inter- national IIuvman Rights Diensims,soumer note 123; Dorothy Q. Thomas & Michele E. Beas- ley, Domestic Violence as a Human Rights Issue, 58 Atii. L. Ri:v. 1119 (1995); Kaderine M. Culliton, Finding a MNfechanism to Enfirce Women s Right to State P otection From Domestic Violence in the Americas, 34 HARV. INT'4 L.J. 506 (1993). 137. For example, if domestic violence itself is "inherently discriminatory in that it both reflects inequality and perpetuates it," Rhonda Copelon, :,mposium: Intl Human Rights Dimensions ofIntimate Violeuce, 11 Am. U. J. GENDER SOt. PoL.'v & L. 865, 869 (2003) [hereinafter Copelon, Symposimo], international law requires countries to take positive measures to combat that aspect ot gender inequality. See CEDAW, .pra note 122, at art. 2(e). If domestic violence violates a person's right to life, liberty, or personal security, then article 2 of the ICCPR imposes on States Parties an obligation to address it. ICCPR, supra note 51, at art. 2 (providing that States Parties must "respect and ... ensure ... the rights recognized in the present Covenant ....").If domestic violence is torture or cruel, inhuman, and degrading treatment, then there is an obligation, among others, to provide a victim of torture "the means for as full rehabilitation as possible." See Convention Against Torture and Other Cruel, Inhumnan or Degrading Treatment or Punishment, Dec. 10, 1984, at art. 14(1), 1465 U.N.T.S. 85. The Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women imposes affirmative obligations on States Parties ifthe "violence against women" is "perpetuated or condoned by the state or its agents." See Inter-American Convention on the Prevention, Punishment and Eradica- tion of Violence Against Women, supra note 126, at arts. 2, 7, 8. Article 8 of the European Convention on Human Rights imposes obligations on States Parties to adopt measures "designed to secure respect for private life even in the sphere of the relations of individuals between themselves." See, e.g., X & Y v. The Netherlands, 8 Eur. Ct. H.R. 235 (1985). Article 3, which addresses torture or inhuman or degrading treatment, also imposes affirmative UNIVERSI"JY OF SAN FRANCISCO LAW REVIEW [Vol. 38 under international law when it returns the domestic violence victim's child to a place where the parent is unsafe. For example, article 17 of the International Covenant on Civil and Political Rights ("ICCPR") prohibits the "arbitrary" interference with one's family. "Arbitrary" means unreasonable in the particular circumstances and in conflict with the underlying provisions, aims, and objectives of the ICCPR.1'3 8 The return of a domestic violence victim's child constitutes unreasonable interference with the mother's and child's family. Return is also inconsistent with other provisions of the ICCPR, such as the protection of the victim's right to life, her right to be free from cruel, inhuman, or degrading treatment, and her right to security of person,' : ' since the domestic violence victim will likely return with her child and be beaten by her batterer.140 The possible justifications for infringing the domestic violence victim's righls do not withstand close analysis, either because the justifications are doctrinally impossible or because the justifications do not make the action reasonable in these particular circumstances. For example, the child's return cannot be justified as being in the child's "best interest" because there is no determination of the child's "best - 4 interest" in a Hague proceeding. 1 1 Similarly, return cannot be justified as protecting the hither's interest in having a custody award in his favor because the father's interest can be vindicated in the location where the mother is located. The Hague Convention does not itself 42 determine custodial rights.' Those justifications that might prove more valid do not render the return of the child a reasonable act in these particular circumstances. While the father and child have an interest in a relationship obligations on States Parties. See Z & Others v. United Kingdom, 34 Eur. H.R. Rep. 3 (2002). 138. See HUUMN Rim(ATS COMM., GEN ,P.CO.MM\,NI 16 1 4 (32d Sess. 1988); see aho Maria v. McElroy, 68 F. Supp. 2d 206, 232 (E.D.N.Y 1999), abrmgaled m other grounds, Restrepo v. McElroy, No. 99-2703, 2004 WL 652802 (2d Cir. Apr. 1,2004). 139. See, e.g., ICCPR, supra note 51, at arts. 6, 7, & 9. The government has an obligation to prohibit these activities by private persons. See, e.g., HLt:.AN RicHrs CoMm., GENWRE. CoMENT 7 (16th Sess. 1982); Geneal Comment 28, su.pra note 127. 140. See REUNITE, supra note 6. The inability of the abductor to receive due process in the child's habitual residence would also justify the defense. The entire Hague Convention rests on the notion that a fair custody contest can occur in the child's habitual residence. Due process is a recognized international human right that is applied internally by Con- tracting States. In a particular case, it may be helpful to conceive of the domestc violence victim's safety concerns as also affecting her ability to receive due process. 141. See Hazhun Escaf v.Rodriquez, 200 F. Supp. 2d 603, 610 (E.D. Va. 2002). 142. See, e.g., Hague Convention on the Civil Aspects of International Child Abduction, supra note 1,at art. 19. Summer 2004] ARTICLE 20 with each other pending any custody litigation, 143 the mother and child have an identical interest. While the father's and child's interest can be satisfied by visitation in the place to which the mother has fled, a place where visitation can be structured to address the mother's safety concerns, the mother cannot visit her child in the child's habitual residence without great risk to her own safety-a risk which can impair her parenting 144 and harm the child if it materializes. 145 Exer- cising interim visitation abroad is an unlikely option for the mother given her status as an abductor, nor is it likely to be of a sufficient quantity or quality to satisfy the mother's desire for companionship. In contrast, the court adjudicating the return petition can assure the father substantial visitation as a condition of its order refusing to return the child. A General Comment issued by the Human Rights Committee suggests that this interim visitation arrangement would best comport with a state's public international law obligations: "If the marriage is dissolved, steps should be taken, keeping in view the paramount interest of the children, to give them necessary protection and, so far as is possible, to guarantee personal relations with both parents."' 46 Nor can returning the child be justified as necessary for the continued vitality of the Hague Convention. A narrow interpretation of the Hague Convention's exceptions is often touted as essential to the Convention's success, 147 yet it is unnecessary to interpret the defense so narrowly as to foreclose its application when it is warranted. Moreo- ver, while ending international child abduction is an important state interest, so too is ending domestic violence. 14' The only rational way

143. The child has a right to the company of his or her parents. See (7DHt, supra note 103, at art. 16 ("[T]he family is the natural and fundainental group unit of society and is entitled to protection by society and the State."); ICCPR, supra note 51, at art. 23 (same); CRC, supra note 112, at art. 7 (a child has "as far as possible, the right to know and be cared for by his or her parents"). 144. The batterer's presence can detract from a woman's ability to mother. In addition, if he injures her, this tot) inhibits her ability to focus on ier child. The child welfare system in the state of the child's habitual residence might even remove the child from the mother because of the risk to the child from the domestic violence. See Jn reG.S.Jr. & S.S., 59 P.3d 1063, 41-45 (Mont. 2002). 145. See Weiner, InternationalChild Abduction, supra note 4, at 621-22 (citing sources). 146. See General Comnment 17, U.N. HRC, 35th Sess., 1 6, at 146, U.N. Doc. No. HRI/ GEN/ I/Rev. 6 (1989) (emphasis added). 147. See, e.g., Linda Silberman, Itague Convenion on InternationalChild Abduction: A Buie/ (hierview and Case Law Analysis, 28 FAMi. L.Q. 9 (1994) ("Perhaps the most important aspect for success of the Convention will be the ability to limit the use of defenses."). 148. See Baker v. Baker, 494 N.W.2d 282, 288 (Minn. 1992) ("[T]ie general public has an extraordinary interest in a society free front violence, especially where vulnerable persons are at risk.") (employing the Matthews balancing test to dctermine whether a temporary custody order to domestic violence victim violated due process). UNIVERSI'ITY OF SAN FRANCISCO LAW REVIEW [Vol. 38 to harmonize these interests is to allow the article 20 defense in the narrow circumstances in which a woman's safety will be threatened if she returns with her child to the child's habitual residence. Otherwise, women may, in fact, be deterred from abduction, but at a great cost to themselves and inevitably their children. Returning the domestic violence victim's child also violates a country's affirmative obligations imposed by international law. The return of the child increases, not decreases, the risk of future violence to the woman (and the consequent harm to the child) since many women will return with their children.14 1 Undertakings agreed to by the petitioner regarding the woman's safety do not eliminate or suffi- ciently reduce this risk.'1'" The return of the child also undermines the rehabilitation of the domestic violence victim, broadly under- stood. If the mother returns with her child, her rehabilitation is set back because her physical safety again becomes a primary concern. Some women also may experience traumatic stress when they return to the place of violence.' 5 ' If she does not return with her child, her ability to heal will likely be affected because she is separated from her 2 child.15 Returning the child also makes the country complicit in further- ing discrimination against women. Domestic violence reflects and perpetuates gender hierarchy, and countries have an affirmative

149. See REUNITE, supra note 6. 150. Id. at 30-31. The REUNITE study revealed that non-nolestation undertakings were given in fifty percent of the cases in which undertakings where given (six out of twelve). Id. at 31. These noni-molestation clauses were broken in one hundred percent of the cases. Id. The REUNITE study also documents instances in which the police took no action when undertakings were broken. Sometimes the police said the undertaking had "no real effect." Id. at 33. The authors report, "where it was sought to enforce the undertakings through police complaint, the outcome was generally unsuccessful." Id. at 34. In addition, court enforcement of undertakings was stymied by cost, among other barriers. Id. See also Weiner, 1htenational Chid Abdultion, suprn note 4, at 676-82. 151. See Evi B. CAISON &Josta Ruzt K,NAT'i. CTR. FOR POST-IRAUTC STREsS DIS(-)R- DER, EFFECTS or TRAUMATi4c Exrr'RIi-N..vS (Sept. 1, 2003), at http://swww.neptsd.org/faets/ general/fseffects.html (last accessedJune 14, 2004) (describing physical and mental reac- tions to trauma reminders); see also Blondin v. Dubois, 78 F. Supp. 2d 283, 290-91 (S.D.N.Y. 2000) (relaying testimony of Dr. Solnit that sending child victim of violence back to place of violence can trigger post-trauniatic stress disorder). 152. (f,Exec. Comm. o]the High Commrs Programme, Family Protection Issues, 14-17, U.N. Doc. EC/49/SC/CRP.14 (1999), noting, The refugee family ... helps to ensure the emotional well-being of its individual members. The important psychological support which the family environment can provide should not, in U.N. IICR's experience, be underestimated. Maintain- ing the family unit is one means of ensuring a semblance of normality in an otherwise uprooted life. Summer 2004] ,A1<1ICLE 20 obligation to combat it.Y."' When a court punishes a woman for escap- ing domestic violence by removing her child even though the child's habitual residence cannot or will not adequately protect the mother, or when the court requires that the mother put herself in danger to be with her child, the court is failing to address this form of gender discrimination adequately. In fact, the court becomes a tool of batterers who seek to maintain access to their victims.

2. Discretion Some authorities have suggested that a successful article 20 defense does not prohibit a court from exercising its residual discretion to return a child. 15 4 This conclusion is suspect if the relevant fundamental principle is embodied in a constitution or other law that the court must obey. WAThile it may have some merit if the relevant fundamental principle is reflected in a law with an equal or subordinate status to the Hague Convention and its implementing legislation, courts should be extremely reluctant to exercise any discretion they may have to return the child. Courts that exercise their discretion to return children despite the existence of a defcnse typically balance the purpose of the Con- vention against a finding that a defense has been made out.1 5' A court that balances these considerations when an article 20 defense exists should almost always decide not to return the child. The purpose of the Convention is to secure the prompt return of children; promptly returning abducted children is supposed to deter abductions and lo- cate the custody contests where most of the relevant evidence ex- 15 6 ists. The purpose of the Convention, however, is qualified by the assumption on which it rests: that prompt return will best serve chil-

153. See soi/a note 137 and accompanying text. 154. See Hague Convention on the Civil Aspects of International Child Abduction, s-ufra note 1, at art. 18; Friedrich v. Friedrich, 78 F.3d 1060, 1067 (6th Cir. 1996); Hague International Child Abduction; Text and Legal Analysis, Public Notice 957, 51 Fed. Reg. 10,494, 10,509 (Dep't State 1986) ("Importantly, a finding that one or more of the exceptions provided by Articles 13 and 20 are applicable does not make refusal of a return order mandatory. The courts retain the discretion to order the child returned even if they consider that one or more of thre exceptions applies."). 155. See Lowvu., EVERAL.. & Ni.cioi.iS, INTERNATIONA1. MOViMENT OF CILtDREN, S111pm-1 note 27, at 368. For an example of the court's exercise of its discretion to return a child, see Mendez Lynch v. Mendez Lynch, 220 F. Supp. 2d 1347, 1362 (M.D. Fla. 2002) (finding nine-year-old child's views were formulated when child was only six and heavily influenced by abductor). 156. 'he drafters also probably believed that a prompt return would return the child to its primary caretaker. See Weiner, InternationalChild Abduction, supra note 4, at 608-09, 616-17. UNIVERSITY OF SAN FRANCISCO LAW REVIEW [Vol. 38 dren's interests. 157 It cannot be presumed that deterring abduction and situating the custody contest in the child's habitual residence is best for the children of domestic violence victims. 11 Rather, it is more logical to presume that children will be harmed by deterring tile escape of their mothers from domestic -violence and by situating their custody contests in locations where their mothers are unsafe. 591 Be- cause this conclusion also extends to the particular child before the court, the court should be extremely reluctant to exercise its discretion, just as courts have been reluctant to exercise their discretion when the respondent establishes an article 13()) defense.ic' In addition, return in this context sends messages to children and others that human rights are irrelevant and that domestic violence perpetrators need not be accountable for their acts yet again. These messages are antithetical to children's interests in the long run. Finally, return in these circumstances may violate a country's obligations under public international law. However, whether a country's obligations under the relevant human rights treaties trump the "discretion" allegedly given to judges under the Hague Convention to disregard those same human rights is a question of treaty interpretation and general principles of international law."'

3. Boundaries

Skeptics may contend that a strengthened article 20 defense will know no bounds. After all, might it not violate the mother's rights if the state of habitual residence will not consider the fact of domestic

157. See Hague Convention on the Civil Aspects of International Child Abduction, suln'a note 1, art. 1 & preaible. 158. See Weiner, InternationalChild Abduction, supra note 4, at 619-26. 159. See Silverman et al., supra note 66; sources cited supra notes 134-35, 144; Weiner, Internationalchil! Abduction, supta note 4, at 621-22 (citing sources). 160. See BFALUMONT & M(EuIwXA, supra note 15, at 155. See, e.g., Walsh v. Walsh, 221 F.3d 204, 221 n.17 (Ist Cir. 2000); Danaipour v. McLarey, 286 F.3d 1, 25-26 (Ist Cir. 2002). Whiether courts have recently increased the use of their discretion in the context of article 13(b) by imposing undertakings on petitioners is an empirical question. To the extent that courts have used undertakings to return a child even in cases in which an article 13(b) defense has been established, this practice is highly questionable. The problems with undertakings in the context of domestic Niolence have been noted, including by Weiner, Inter- natianalChildAbduction, supra note 4, at 679-81, and by the REUNITE study. See REUNITE, supra note 6, at 28, 35. 161. See, e.g., RFSTATEME:NT (THIRD) FOREIGN REiATiONS LAw OF T-n: UNITEr STATES, §§ 323, 332 cmt. f (1987). The laNfulness of a country's actions might differ under international and domestic law. Under domestic law, for example, rules about the effect of treaties in domestic courts as well as rules about the priority of implementing legislation might be determinative. Summer 2004] ,M<,TCLE 20

violence in its custody adjudications or if the state of habitual residence will not allow her to relocate t°2 Do these situations require that a court accept the article 20 defense? These are difficult questions because of the conflicting considerations involved. On the one hand, some have argued that a court's failure to consider domestic violence in custody adjudications violates international human rights law' 63 and the relevant international principles may be reflected in the internal law of a particular Contracting State. On the other hand, article 20 was not intended as a means to judge different custody regimes. 1 Countries differ dramatically regarding how they resolve custody contests as well as the permissibil- ity of transnational relocation for custodial parents. Allowing these sorts of differences to establish an article 20 defense would encourage forum shopping, contrary to the goal of the Hague Convention. As Lord Justice Thorpe once recognized, "The further development of international collaboration to combat child abduction may well depend upon the capacity of states to respect a variety of concepts of ' 6 child welfare derived from differing cultures and traditions. 11 Fortunately, the resolution of these challenging questions is not necessary to a determination that the defense is appropriate when a domestic violence victim's safety is threatened in the child's residence. An evaluation of the mother's safety concerns does not involve an as- sessment of a particular custody regime, nor does it encourage forum- shopping, any more so than any of the other established defenses.

162. I do not mean to imply that the left-behind parent has "rights of custody" if he or she is only the beneficiary of relocation restrictions, without nmore. I do not believe that to be the case. See Weiner, Navigating the Road Between Unitormtit and Progress,s upra note 8, at 326-33. However, relocation restrictions may inhibit travel because they may subject the custodial parent to domestic sanctions, such as contempt, ifdisobeyed. 163. Silverniarn et al., supra notc 66; ARaz. COM.ITION AG;AINST DOM.STIC: VItI.EN(, B.T- TERED MOTHERS' TFSTIMONY PROIF(C: A It MsAN RIG-]TS APPROAC11 TO CI-nitl) CAT'STODY AND DONEsTiC VIOLENCE (2003), at http://ww.azcadv.org/PDFs/FS-BMTP /20report.pdf (last accessed June 14, 2004). 164. SeeJohn M. Eekelaar, InternationalChild Abductions bY Parents, 32 U. TORONTO LJ. 281, 314 (1982) (describing how article 20 was not intended to provide a defense for different family law principles and giving as an example preferred custody rights in one parent). 165. For example, some countries have a strong preference for mother custody until a certain age, or torjoint custody, or for religious matching. 166. Osman v. Elasha [2000] Fai. 62, 70 (Eng. C.A.) (holding that children should be sent back to Sudan even though, under Islamic law applied by the Sudanese court, that meant that the paternal grandmother would have custody of the children and their mother would only have rights of access (because she was divorced and remarried) and would not see the children as often as she wanted). UNIVERSI ' OF SAN FRANCISCO L W REVIEW [Vol. 38

C. Reforming the Convention The Permanent Bureau at the Hague understands that domestic violence can motivate a victim to flee transnationally with her children. For example, the topic of domestic violence was relevant to the recent rejection of a proposed access protocol.1'6 7 The Permanent Bu- reau now must use its knowledge of domestic violence to address the problem discussed in this article, a problem that strikes at the very heart of the Hague Convention.' 68 Concerned individuals have suggested various measures to ame- liorate the injustice domestic violence victims experience when they are respondents in Hague Convention proceedings. 6" Delegates

167. "Access" means "visitation." See 2002 SPECIAL COMMISSION, supra note 66, at 33-34. The Report states, The general principle of the right of the child to maintain contact with both parents is of course broadly accepted. But there is a difference in the weight at- tached in different jurisdictions to the presumption in favour of contact by the non-custodial parent, particularly in cases where domestic violence has been alleged. Id. 168. The remedy of return is the principal remedy of the Hague Convention and cases in which petitioners seek that remedy outnumber cases in which petitioners seek access by five to one. See Lowe, Statistical Analysis, supra note 6, at 34. 169. See, e.g., Weiner, International Child Abduction, supra note 4, at 698-703 (arguing that the remedy of return should be stayed pending a custody contest in the child's habit ual residence); Miranda Kaye, The t1agwe Convention and the Fightfrom Domestic Violence: loM Women and Children Are Being Returned by Coach and Four, 13 I'

jurisdiction, and a new paragraph 1.3 was inserted in the Guide to indicate that the applicant should be aware that confidentiality of personal information cannot always he guaranteed in the requested country's administrative and legal procedures, particularly when email communications are being used. Id. Incorporating the topic of domestic violence into judicial training and education is another possibility. Finally, having delegates to the next Special Session acknowledge that article 13(b) and article 20 are viable defenses for domestic violence victims would he extremely helpful. See alvo Carol S. Bruch, The Unmet Needs of Domestic Violence Victims and Their Children in Hague Child Abduction Convention Cases, 38 F.Ni. L.Q. (forthcoming 2004). 170. ICCPR, supra note 51, at art. 3; see also General Comment 28, supra note 127. 171. ICCPR, supra note 51, at art. 6. 172, Id. at art. 7. 173. Id, at art. 24. 174. See Ignaccolo-Zenide v. Romania, 31 E.H.R.R. 7 (2001) (holding that Romania violate([ article 8 of the European Convention on Human Rights when the Romanian authorities did not take adequate measures to secure the prompt return) of a child pursuant to the country's Hague obliga tions); see also Sylvester v. Austria, 37 E.H.R.R. 17 (2003) (holding Austria had violated the applicants' rights under article 8 of the European Con- vention on Human Rights hecause it did not enforce a final order of return). UNIVERSITY OF SAN FRANCISCO LW REVIEW LVol. 38 violence victims. For example, an individual may file a petition for alleging a treaty violation if a court orders her child to be returned.I 75 Human rights monitoring bodies may ask States Parties to account for their insensitivity to women's human rights in their application and review of the Hague Convention. The Special Rapporteur on Violence against Women might add this issue to her agenda. The fact that there may be a legal obligation to address this particular issue should not overshadow the fact that there is also a moral obligation to do so. Contracting States and their delegates should be committed to minimizing the harm caused by their legal framework. The Hague Convention was a magnificent solution to one type of social injustice. Time has shown that it causes another. Fine-tuning the instrument to minimize its harm is both possible and desirable. Just as individuals had the wisdom to create the Hague Convention, individuals have the wisdom to make it better. Just as individuals had the ability to draft the Hague Convention, individuals have the ability to craft new solutions. Article 20 represents a commitment by countries to respect human rights in the implementation of the treaty-this commitment should guide delegates as they address the domestic violence victim's dilemma.

175. See, e.g., Optional Protocol to the International Covenant on Civil and Political Rights, Dec. 19, 1966, 999 U.N.T.S. 171; Optional Protocol to the Convention on the Elimination of DisciminationAgain.st Women, Dec. 22, 2000, G.A. Res. 54/4, Annex, U.N. GAOR, 54th Sess., Supp. No. 49, at 5, U.N. Doc. A/Res/54/4 (1999); Convention for the Protection of Human Rights & Fundamental Freedoms, as amended by Protocol No. 11, art. 34, Nov. 4, 1953, 213 U.N.T.S. 221; Inter-American Convention on the Prevention, Punishment, & Eradication of Violence Against Women, June 9, 1994, 33 I.L.M. 1534. Summer 2004] ,WFIICLE 20

APPENDIX

Contracting States That Are Party to Major International Law Treaties

Hague ('omntion hiterAmerinii (Coveition ('ouvnfiou muntiatiola (onvention European Percentage ot Cvil specs Convention on Agaw4st 01) the Cov' oamuji on the (toidon of Overal of Iptcniatimiz Ch3d Oc Nvrnntiom, Tortu'c and limiuafion o ('ivi and Righti of thc oi Human flairtiv Abdhiction Punihment Other Cruel, AH Form, or poliki( Child Rights Applicaions and Inhnuan or )iscriminaion Rights Received ,bv Eradication of Degni ding Against Gunu)1 Violence T calrlt or Women Agaillst lliXhment

Aigentina X X X X X Australia x 7% Austria x x 1% Bahamas x x Bela-us x Belgium x Belize x x Bermuda x Bosnia & x Herzegovi na Brazil x x Bulgaria x Burkina Faso x Canada x Cayman Islands x Chile x x China, Hong x Kong China, Macau x Columbia x x Costa Rica x x Croatia x Cyprus x (Gzech Republic x Denmark x Ecuador x x El Salvador x x Estonia x Falkland Islands x Fiji Finland x Frane x Georgia x Germany x Greece x Guatemala x x Hondura. x x Hungary x Iceland x Ireland x Isleof Man x Israel x Italy x Latvia x Lithuania x

1. Nigel Lowe, Sarah Armstrong, & Ancst Mathias, A StatisticalAnalysi" of Applications Made in 1999 Under the Hague Contention ofJ25 October 1980 ou the Civil Aspets of bnternatmal Child Abdwu-tion, Special Conm'n Prelim. Doc. No. 3, March 2001, at 7, availableat http:// wv.hcch.net/doc/abdpl3e.doc (last accessed Aug. 24, 2004). UNIVERS1TY OF SAN FRANCISCO LAW REVIEW [Vol. 38

.uxenmbourg x Macedonia x Malta Mauritius Mexico X X

Monaco Montserfat A Netherlands N X 3% New Zealand 4% Nicaragua X S Norway X 1% Paisausa X X Paraguay X X Peru X X Poland N Portugal N Romania x Saint Kitts and Nevis Serbia/ x x x Montenegro Sloxakia x x x Slovenia x x x South Africa x x x Spain x x x x 4% Sri Lanka x x x Sweden x x x 1% Switzerland x x x x 1% Thailand x x Trinidad and x x x Tobago Turkey x x s Turkmenistan x x x United Kingdom x x x Uruguay x x x x USA x s x Uzbekistan x x x Venezuela x x x x Zimbabwe

Key: S = Signature Only A = Bermuda, Cayman Islands, Falkland Islands, and Montserrat are Overseas Territories of the United Kingdom. The Isle of Man is a Crown Dependency. The United Kingdom can and has extended various treaties to these territories. Even if the U.K. has not extended a particular treaty to a teiritory, the United Kingdom considers the territory bound by these treaties. See,e.g., White Paper, Briltain and the Overseas Territories: A Modern Partnership § 4.1-4.3 (1999).